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CONTROVERSY ON A QUESTION OF IIANK 

^ '1*' BETWEEN 

'^ GENERALS SCOTT AND GAINES. 

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TO THE / f ^ 

HONOURABLE SECRETARY OF WAR. 



New-York^ February 18, 1827. 
Sir : 

In a letter of the 10th ultimo, I brought under your 
notice a pamphlet against me, manifestly the production of 
General Gaines ; and it being evident from the character of 
the outrage that no act of the government, whatever might 
be its wish, could afford me indemnification, I asked to be 
remitted to my natural right of self-vindication before the 
tribunal to which 1 had been appealed. 

In support of that demand, I stated some of the peculiar- 
ities of the case. General Gaines, as was pointed out, had 
not only printed an official letter, in abuse of me, (originally 
addressed to the General-in-Chief) but had supp 'essod my 
reply similarly directed; and to crown the stratagem, dded 
his ijjoinder (in a remote part of the pamphlet) to the reply 
so suppressed ! If the character of my suppressed letter be 
considered with the one to which it was a reply, I apprehend 
it will be distinctly perceived that a baser suppression has 
rarely been exposed. 

In your answer (of the 1st instant) to my request, you inter- 
pose, as it were, a shield, to protect General Gaines from ex- 
posure, that precise regulation of your Department of which 
his publication is, itself, a flagrant violation. 

The words of the regulation (No. 1497) are — " Publica- 
tions relative to transactions between officers, of a private or 
personal nature are prohibited," Sic. " It is made the duty 
of all officers having the power, to arrest and prefer evidence 
for charge on such publication," &:c. " when the proper au- 
thority will bring the officer to trial before a General Court 
Martial." 



You intiaiate that General Gaines will be held responsible, 
if sufficient evidence be adduced, for his breach of that regu- 
lation. That, Sir, was not the design of the letter which I 
had the honour to address to you. 

In the same communication, I asked for a certified copy of 
his reply (Jan. 11, 1826) to my suppressed letter, alluded to 
above. My declared objects were, to ascertain if it contained 
the same d\?,\\nci falsehood (in respect to a challenge) asserted 
in the printed letter, and, if so, to prefer an immediate demand 
that he should be brought to trial on that charge (of false- 
hood.) It is obvious, that if I had proceeded upon ihejjrinted 
copy, and had failed to fix upon him the publication by tech- 
nical evidence j — or, if a variation had been discovered at the 
trial, between the printed copy and the original, in either case 
the prosecution would have failed. I knew the party to whom 
I was opposed. His tracks point not to the den in which he 
is concealed. 

That General Gaines had before him a copy of my letter 
which he so shamelessly contradicts and suppresses, will not, I 
suppose, be denied. The fact is self-evident from his reply. 
I also stated (on information not official) that he had been fur- 
nished with copies of all my communications to the authori- 
ties at Washington on the question of rank between us ; andj 
I added, that a copy of but one of his on the same subject, 
(that bearing date Jan. [30] 1825) had been sent to me. 

My application under this head, was wholly unnoticed by 
you in your answer above recited. The same request was 
repeated on the 1st instant ; but it seems, on this point, I am 
not to be honoured even with a reply. [A reply, with the 
paper, received Feb. 24th instant, is acknowledged in a sub- 
sequent part of this letter.] 

Does not the Department perceive, that by its decisions on 
the foregoing requests, General Gaines and his published slan- 
ders, are, in effect, taken under its special protection ^ That 
I am denied the right to consign him to the public indigna- 
tion which he merits ? That the legal means of his judicial 
condemnation are withheld .'' And, has not the Department 



reason to know, that my enemy is not amenable to another 
tribunal to which wounded honour, from the impotency of 
public justice, is sometimes forced to appeal ? 

Such is my singular position in relation to an unparalleled 
outrage. The strong arm of the government has forced me 
into my utmost limit, and 1 must bear, or redress my injuries 
as I may. 

Hence my present purpose of laying before you a refuta- 
tion of every charge and point made against me in the pam- 
phlet. The review will be necessarily tedious. It is impor- 
tant to me, however, that it be placed on the files of the De- 
partment, and I hope I may trust to the justice of my official 
superiors to give to it an attentive perusal. What further 
measures I may deem it my duty to take with General Gaines 
will remain for future consideration. 

I have assumed him to be the author and publisher of the 
pamphlet. Internal evidence alone is sufficient to establish 
these conclusions. Besides, it is known that the pamphlet 
comes from the West — in all probability from Cincinnati, his 
head quarters. 

It is here v^^orthy of remark, that this self-complacent indi- 
vidual, who, with mawkish precepts on his lips, which he is 
ever the first to violate ; thus expresses himself in a letter to 
the Secretary of War, dated January 31, 1825. He is con- 
demning appeals to the public : — " Besides ; controversies 
among the chiefs of an army, founded on such productions, 
[a printed opinion of General Jesup on brevet rank] would 
be more likely to lead it into labyrinths of inextricable con- 
fusion and consequent disgrace, than to promote the cause of 
truth, obedience to the laws, and the enhancement of the mo- 
ral power resulting therefrom." See the letter in his Cincin- 
nati pamphlet, p. 18. 

Yet in the next three months (See iSth and 14th lines, p. 
22, same pamphlet) this same General Gaines sanctioned and 
circulated against me a pamphlet, (said to have been written 
by his aide-de-camp) before I had published a line, and now 
repeats the offence without shame or remorse ! 



I shall show that the circulation of General Gaines' recent 
pamphlet has been sly and restricted. It is, as will be observed, 
without title, signature, printer's name, or place of publica- 
tion. One copy was enclosed by a friend of mine, in Con- 
gress, to another friend in Richmond. This is the one trans- 
mitted by me to the Department, the 10th ultimo. A second 
copy was sent to me, direct, by another friend in Congress. 
Each of these members became possessed of the pamphlet by 
accident, or at second hand. Long since I received the first 
copy, at Richmond, my friends in distant parts of the union 
had not heard of the pamphlet, or had only heard of the two 
copies I have mentioned. My direct intelligence is from 
Washington, Richmond, Norfolk, Fortress Monroe, Balti- 
more, Philadelphia, Pittsburgh, New-York, West-Point, he. 
&c. ; and, on the 1 1th instant, I transmitted to the Depart- 
ment of War, a letter dated the 17th ultimo, from an officer 
at the Infantry School of Practice, near St. Louis. The wri- 
ter states, that a copy of a letter from General Gaines to the 
Department, dated October 25, 1826, in which liberties were 
taken with my name, had then just been shown to him by 
some partisan of my defamer. [I again request to be fur- 
nished with a copy of this letter. It is not given in the pam- 
phlet.] From the subject matter of my correspondent's com- 
munication, his fair and honourable character, it is perfectly 
obvious if he had seen or heard of the pamphlet, that also, 
would have been mentioned. It is probable, however, that 
but few copies have been entrusted to army-officers. Their 
better knowledge of the matters, names, he. given in the pam- 
phlet, would have enabled them, at once, to detect and expose 
the falsehoods published against me. 

Will it be believed, that the two copies which have fallen 
into my hands were alone put into circulation ? The strong 
probability is, as I have argued, that copies have been sent 
only to the friends and partisans of the author, through whom 
it was hoped a silent prejudice might gradually be propaga- 
ted against me, particularly in Congress, without exposing 
the hand of the assassin, or the instrument that inflicted the 



blow. All, however, who were invited to join the conspiracy, 
have not thought proper to obey the call. 

The following is the outline of General Gaines' pamphlet. 
The numbers are prefixed by me for the convenience of re- 
ference. 

1. A letter from General Scott to the Adjutant-General, 
dated, January 1, 1825, in support of his right to rank and 
precedence over General Gaines. A dry technical argument, 
of about seven pages — not a word of contumely or disrespect 
towards General G, or any one else. 

Jfote. A copy was sent by the General-in-chief, to Gene- 
ral Gaines for his remarks and observations thereupon. 

2. The reply of General Gaines, Jan. 30, 1825, addressed 
to the General-in-chief — nine pages ; a stream of indecent in- 
vective against General Scott, interrupted by the self-praises 
of the writer, his homage to men in power, and compliments 
to all future readers ; but few attempts at argument. 

Note. A copy was sent by the General-in-chief to Gene- 
ral Scott for his rejoinder. That rejoinder (also addressed 
to General Brown) of Feb. 5, 1825, ought to have been the 
No. 3. of the pamphlet. It exposes the character of No. 2 
with severity. Hence it is suppressed. Those three papers 
were laid before the Board of Officers which sat about that 
time, on the question argued in No. 1, and ought, therefore, 
to have been printed together. 

3. (Of the pamphlet.) A letter from General Gaines (appa- 
rently) to the Secretary of War, dated Jan. 3J, 1825. In 
the main, a notice of a printed opinion of General Jesup on 
the nature of brevet-rank ; but not without the writer's usual 
attacks on General Scott. 

4. Proceedings (Extract) of the Board of Officers before- 
mentioned. 

5. Laws and regulations (Extracts) relative to brevet-rank. 

6. A puff, and reprint of a pamphlet sanctioned by Gene- 
ral Gaines, and published at New- York in the spring of 
1825, in favour of his pretensions to rank General Scott. The 



8 

pamphlet is entitled, a " Brief Examination, ^c." said to be 
from the pen of General Gaines' Alde-de-Camp. 

7 and last. Letter from General Gaines (apparently to the 
Secretary of War) dated, Jan. 11, 1826, in part containing 
miscellaneous abuse of General Scott, but mainly a reply to 
his suppressed letter. 

Jsfote. This letter would, doubtless, have been printed be- 
fore the No. 3. above, but that its juxta-position with No. 2. 
would have betrayed to the most careless reader, the fraud in 
respect to the suppression. Hence an interval of seven pages 
of miscellaneous matters between the No. 2. and No. 7. of 
the pamphlet. 

Such is the general character of the publication which I 
am about to subject to a severer analysis. It forms twenty- 
five closely printed octavo pages. 

I shall, under the first general head, notice what may be 
called, General Gaines' personalities, or imputations ; under 
the second, whatever may have a direct bearing on the ques- 
tion between us of rank and command in the army. The two 
heads will, in some instances, unavoidably run into each 
other; but I shall endeavour to observe the analysis as strictly 
as practicable. 

/. Personalities : Imputations. 

I will here repeat the remark that these commenced with 
General Gaines. My letter of Jan. 1,1825, is absolutely free 
from this vice. If his reply, addressed to high authority, had 
been sent back with orders to expunge every thing which did 
not belong to the logic of the question, his forty-five manu- 
script pages would have be?n curtailed to a mere note ; our 
military archives would have been preserved from pollution, 
and the public, for whom his letter was manifestly designed, 
spared the scandalous spectacle now presented by that letter 
and other parts of his pamphlet. Some of these ideas were 
strongly presented in my suppressed letter, or rejoinder, and 
all of them plainly intimated. I was, however, without influ- 
ence ; — made to the General-in-chief my apology in advance, 



Imputation First. 9 

and then retorted and recriminated — not at random, but on 
specification and proof. I beg leave to renew my most un- 
feigned regrets for what must here follow of the same cha- 
racter. 

1. I am charged with having, as compiler of the Army Re- 
gulations, edition of 1821, contrived Article 3, (on the rank 
of ofiicers, including brevet-rank) so as to operate in my 
favour against General Gaines. See his letter, January [30] 
1825, passim. 

This is his principal and perennial source of invective 
against me. If that be stopped, a portion of his rancour, at 
least, ought to seek a different channel. 

Now, it ought to be sufficient for me in my defence, to 
point to the very elaborate argument (my letter Jan. 1, 1825.) 
on the question of rank between us, which stands at the head 
of his pamphlet, and in which there is not the slightest refer- 
ence to the third, or any other article of the regulations. But 
as it is in his reply to that very argument that the charge 
abounds, I will mount, in point of time, a step higher. 

Soon after I had first heard of this specific charge, I ad- 
dressed a letter of complaint (July 25, 1824,) to General 
Gaines, not doubting that he would, as a gentleman, retract it. 
His oflensive reply led to the challenge which will be noticed 
in the sequel. The following is an extract of my letter. 

'^In all my discussions of the question of rank between us, 
with the War Department, I have never, to the best of my re- 
collection, appealed to the said [Army] Regulations, as 
authority in my favour. On the contrary, 1 have distinctly 
relied on facts, principles, and usages, which had their exis- 
tence prior to the publication of that book. I have gone 
farther, and now repeat, that whilst I am willing the book 
shall be quoted against my claim to the precedence in ques- 
tion, I shall ever scorn to support that claim by any autho- 
rity which I may have assisted to establish." 

It is here pertinent to remark, that General Gaines has, as 
his pamphlet will show, frequently quoted the Regulations 

2 



1 Imputation First. 

against me, and once on the Board of 1821, as will be ex- 
plained in the sequel, obtained, under the very article in ques- 
tion, a momentary advantage over me, and which he could 
not otherwise have obtained. All these points were fully 
stated in my letter, February 5, 1825. Hence, in part, its 
suppression in the pamphlet. Here I might rest my defence 
against the charge cited ; but, if possible, stronger evidence 
yet remains. 

In my letter to the Secretary, in which I proposed to com- 
pile a system of General Regulations for the Army, I sug- 
gested, if my propositions were adopted, that the ^7-0/6^, when 
prepared, might be read to him, in the presence of such ex- 
perienced officers as he might name, with a view to his 
sanction ; and I added, if I did not at the reading, answer 
every objection made by the officers selected for that purpose, 
I would alter, add, or expunge, till the Secretary should be 
entirely satisfied. My propositions were accepted. When 
the projet was prepared, I again wrote to the Secretary to 
say, I would be at Washington at a time appointed ; and re- 
minded him of the former suggestion relative to the presence 
of officers. (I quote from memory. My first letter was after- 
wards printed, and the second is, I presume, in the War 
Office.) I kept my appointment. On inquiring of the Secre- 
tary if he had invited a certain number of officers to assist at 
the reading, I think he replied in the negative ; but added, 
"General Gaines is here." T made some complimentary re- 
marks on General Gaines; an hour was appointed, and I at- 
tended. General Gaines was already with the Secretary. 
The projet was carefully and deliberately read — General 
Gaines being politely invited, by me, to object with freedom, 
and assured of my docility. Every suggestion made by him, 
and, after conversation or discussion, insisted on, was cheer- 
fully adopted. The objections were not numerous, and led 
to some four or five slight alterations at most. These altera- 
tions are unimportant, except as to the history of the third 
article. 

On reference to the edition of 1821, of the Regulations, it 
will be seen, that that Article (relative to rank, including 



Imputation First. 11 

brevet-rank) consists of three paragraphs, numbered 1 , 2, 3, 
respectively. Nos. 2 and 3, have only, I think, been objec- 
ted to by General Gaines at any time.^ 

When, at the reading, we had reached the third Article, I 
again turned to General Gaines and said, I would first read 
it through without particular pause, and then a second time, 
for remarks. I did so. The following note from the then 
Secretary of War, was asked for on the first suspicion that 
my fairness, in respect to this matter, was likely to be im- 
peached by General Gaines. 

" War Department, May 1st, 1822. 
"Sir: 

"In answer to your note of this morning, 1 have to 
state that I have a perfect recollection of the discussion which 
took place betiueen General Gaines and yourself in my pre- 
sence, on Art. 3. par. 3. in June 1820, or some time in that 
summer. The discussion, I think, took place on a suggestion 
from me while the manuscript was under consideration, that 
I had experienced some difficulty in the Department, in ap- 
plying the terms " separate command," and that I thought 
that the paragraph, as it then stood, was not sufficiently ex- 
plicit. The result of the discussion was, that some additions 
or alterations were made which, as far as my memory serves 
me, modified the paragraph as it. now stands. 

" With great respect, &;c. 
(Signed) " J. C. CALHOUN." 

"To Major General Scott." 

This letter is adduced to show that at the reading of the 
Regulations, in the presence of the Secretary and General 
Gains, the third Article ivas discussed and amended, and that 
General Gaines aided infixing its provisions. 

I beg that these facts be now contrasted with an assertion 
of General Gaines, in his letter, Jan. [30,] 1825, {pamphlet, 
p. 12.) Speaking of the third Article of the Regulations, 
he dares to say — " such was the uniform construction of the 



12 Imputation Second. 

law in question, up to the year 1821, when sl printed copy of 
the Regulations for the first time exhibited to my view the am- 
iiguous paragraphs, [Nos. 2. and 3.] embracing the before- 
mentioned effort of General Scott to contravene the law, and 
thereby place himself above me." And this is the individual 
who, in utter contempt of the facts certified by the late Secre- 
tary of War, and after seeing my letters above-noticed, 
(July 25, 1824, and Jan. 1, 1825,) scandalously charges me, 
before the public, with offences w hich he alone of the army, is 
base enough to commit, or to imagine ! 

I shall add the following note, addressed to the Secretary 
of War, (a copy is before me, under the seal of the Depart- 
ment) which was filed, Jan. 12, 1825, whilst I was engaged in 
preparing the second edition of the Army Regulations, pub- 
lished in that year. It will show the fate of the two disputed 
paragraphs. My recommendation was adopted. 

" I respectfully recommend that the two last paragraphs in 
the old article 3, crossed in red-ink, be omitted ; 1st, Because 
they have been absurdly supposed to enlarge the rights of 
brevet-officers to commands, when, in fact, those paragraphs, 
particularly the first [2d; the first mentioned of the tivo^ 
place restrictions on those rights greater than were intended 
by me, or by any statute : 2d — Because, with equal absur- 
dity, those paragraphs have been considered to favour the 
claims of brevet-officers to pay and emoluments." (Signed) 

«W. SCOTT." 

2. " The revised book [General Regulations, edition of 
1825,] contains in lieu of what was stricken out of the first, 
several paragraphs of less ambiguous import truly ; but 
tending more fully to disclose the fixed purpose of the com- 
piler to disregard the clearest principles of law respecting 
brevet rank." [General Scott has been permitted] " to de- 
cide an important question, to which he was a party, and to 
decide that question contrary to an express statute of the 
United States." — General Gaines to the Secretary of War, 
Jan. 11, \826, pamphlet, p. 24. 



Imputation Second. 13 

To bespeak the patience of my official superiors — T ask 
nothing more, I beg it will be remembered that, to the unin- 
genuous, it is as easy to scatter assertions, as it is to breathe. 
Disproof, on the contrary, lags heavily through the field of 
evidence, and few are willing to follow the laborious trace, 
though it lead to truth and justice. I might, it is true, with 
a safe conscience, oppose a simple denial to all the charges 
of my defamer, and throw the burden of proof on him. But 
that would avail me but little. He would instantly be at his 
work again. I, therefore, mean, before I shall have done 
with him, distinctly to prove, that in judgment, as in veracity^ 
he is not to be trusted. 

In lieu of the two paragraphs before mentioned, and with 
the proper approval, after full consideration, I inserted, in the 
new Regulations, No. 16 — " For restrictions on the rank and 
command of regimental officers, by virtue of brevet commis- 
sions, see 61st article of War; and for restrictions on ihepay 
and emoluments of brevet-rank, see act of Congress, 16th 
April, 1818, and the exposition of that act. No. [1124] in 
article 71 [Pay Department] of these Regulations." 

It will be perceived that there is nothing here substantively 
new. To avoid all cavil, it was thought best to throw back 
the whole subject of rank, by brevet, on positive legislation. 
Hence the simple reference to the 61 st article of War, and 
hence a like reference to the act, April 16, 1818, which, as 
expounded in No. 1124, now, alone, regulates the claims of 
brevet officers to pay and allowances. {JVote. I am not the 
author of No. 1124, which is nearly contemporaneous with 
the act it expounds. On the contrary, aided by the Pay- 
master-general, I made great, but ineffectual efforts, in 1825, 
to get it altered — more particularly for the benefit of brevet 
majors — to whom, in my humble opinion, it does great in- 
justice.) 

I beg to fix upon the mind, once for all, the distinction be- 
tween rank, on the one hand, and^ay and emoluments, on the 
other. In our service they do not uniformly or necessarily go 
together. A brevet-major, for example, may (it is of daily 



14 Imputation Second. 

occurrence) take his seat on a court-martial, as major, and yet 
be paid only as captain. He may have the command of even 
four companies of different regiments, and over senior cap- 
tains, by virtue of his brevet, and the 61st article of War 
(similar cases are not infrequent) and yet be paid, under the 
act of 1818, and No. 1124, only as a captain. Take the 
case of my own brevet. It gives me, at all times, the rank of 
major-general ; yet if off duty, or without a command equal 
to a division, I should be paid only as a brigadier. In the 
revolutionary army, also, the pay was not always according 
to brevet-rank. See Journals, Sept. 10, 1783. 

But to recur to the distinct question of rank and command. 
I aver, that with the exception of the 61st article of the rules 
and articles of War, there is not a line or word of positive le- 
gislation, now in force, regulating the rights of brevet-officers 
under this head. And here I am happy to find, that General 
Gaines has, at least for once, ventured on a specification, in 
support of an opposite averment. He says (letter Jan. 11, 
1826) that — " It was, and is, by this section of law [the 4th, 
act, July 6, 1812,] that all the brevets of every grade of offi- 
cers (generals and all) were placed upon the same footing, 
in respect to rank and command, as the 61st article of War 
placed the brevets of regimental officers." 

Here is a distinct admission that the article of War does 
not restrict the brevets of " general officers and all" ; but 
only the brevets of regimental officers. 1 had fully esta- 
blished this point elsewhere, and am glad to find that my de- 
monstration has not been lost upon him. Driven, however, 
from that ground, he now seeks to find a restriction on the 
rights of general officers' brevets (in respect to rank and com- 
mand) in the act of 1812. — It is important to trace the incep- 
tion of this new position. I shall show that it had not oc- 
curred to him at the date of his letter, Jan. [30], 1825 — from 
which I quote the following paragraphs, without even under- 
scoring a word not printed by himself in italics. He is speak- 
ing of the 61st article of War, act, April 10, 1806. 

" This article comprehends the first and only law of Con- 



Imputation Second. 16 

gress upon the subject of ' brevet-rank' from the time the con- 
stitution of the United States was adopted, up to the 6th July, 
1812, — when a law passed, authorising the President of the 
United States to confer brevet-rank, and providing for the 
pay of brevet officers, under circumstances therein specified." 
Pamphlet, p. 10. 

This exposition of the act, 1812, is perfectly fair. The 
section authorises the President " to confer" the rank, and it 
provides for the " jJciy of brevet officers." — Take the next 
paragraph of the pamphlet. 

" The act of 180G, has remained in force ever since its pas- 
sage. It is the only act of Congress, and consequently the 
only law known to the army of the United States, embracing 
the principles upon which brevet-rank and brevet-command 
[added to that of July, 1812] depend." 

This too is perfectly fair and just, if we omit the brackets 
and the words "[added to that of July, 1812]" precisely thus 
given in the pamphlet. But let it be remarked, ihatihe words 
and the brackets diVe not in the original, or rather, not in the 
office-copy sent to me soon after its date. They were inserted 
in the jJrinted copy, to prevent the letter, Jan. [30] 1825, from 
contradicting the letter, Jan. 11, 1826! The trick, like 
Spartan honesty, would have been clever enough — if it had 
not been detected ! But I scorn to profit either by the folly, 
or the knavery of my adversary. Let him amend his argu- 
ment. It shall avail him nothing. — I now proceed to show, 
that section 4, act, July 6, 1812, imposes restrictions on the 
brevet-rank, or the brevet-command, of neither general offi- 
cers, nor regimental officers. Here is the section which he has 
appended to the 61st article of War. 

" That the President is hereby authorised to confer brevet 
rank on such officers of the Army as shall distinguish them- 
selves by gallant actions, or meritorious conduct, or who shall 
have served ten years in any one grade : Provided that, 
nothing herein contained shall be so construed as to entitle 
officers so brevetted to any additional pay or emoluments, ex- 
cept when commanding separate posts, districts or detach- 



16 Imputation Second. 

ments, when they shall be entitled to, and receive the same 
pay. and emoluments to which officers of the same grades are 
now, or hereafter may be allowed by law." 

The body of the section authorises the rank j enumerates 
the cases in which it maybe conferred, and names the appoint- 
ing power. Further, the rank thus provided for, was to be 
over and above the ordinary rank, regimental or otherwise, 
previously held ; for it was to be conferred only on " officers 
of the Army." So far, no restriction whatever was imposed, 
either on the rights of command conferred by the rank, or the 
rights to the pay and emoluments of such rank. There is not 
even a reference to the restrictions on the rights of command, 
within regiments, imposed in the pre-existing 61st Article of 
War. Of course, no greater restrictions could have been in- 
tended, than had been provided by that Article. What was 
the object of the proviso 9 Manifestly to guard the Treasury. 
The " additional pay and emoluments" are only to be re- 
ceived in the cases expressly enumerated. Not a word is 
said about the rights of command — not even a reference to the 
6lst Article. Now, as under the rule, " expressio unius est 
exclusio alterius,^^ officers could not receive pay and emolu- 
ments in any case not expressed ; so, pay and emoluments 
being mentioned and restricted, and the rights of command 
not even alluded to, the section could not, by any possibility, 
be made to embrace the latter. But it is absolutely idle to 
dwell on this subject. The first part of the section is modi- 
fied, and the proviso superseded by, the act entitled, an act, 
" regulating the pay and emoluments of brevet officers,^' April 
16, 1818. — The modification consists, simply, in requiring 
the advice and consent of the Senate, Tn the case of brevets, 
as in respect to all other military commissions. 

I have then demonstrated, that a reference to this section, I 
may say, in any part of the Regulations, would have hQenfalse ! 
The only part of it now in force relates solely to the induce- 
ments and contingencies on which the rank may be conferred ; 
and these matters did not fall within the plan of the compila- 
tion. How criminal then. General Gaines' charges against 



Imputation Second. 17 

me (letter, Jan. 11, 1826.) of *' manifest omissions;" of" en- 
tire omission of much tliat should have been expressed ;" of 
having, in a case to which I "was a party " decided, "con- 
trary to an express statute of the United States." 

Let it be now remembered, that these accusations, on a 
purely technical subject, have been published — with a breadth 
of assertion only equalled by their falsity, to, I know not ptt 
whom; — that I have been denied the privilege of a public 
reply, and that the charges have been made in th€ teeth of 
my recorded declaration that— "whilst I am willing the book 
should be quoted against my claim to the precedence in ques- 
tion, I shall ever scorn to support that claim by any authori- 
ty which I may have assisted to establish." {See swppresstd 
letter, Felruary 5, 1825, enclosure \A^ 

I think there is another insertion in the same third article, 
second edition of the Army Regulations, " in lieu of what was 
stricken out of the first," which has brought down upon me 
the weighty censures of General Gaines. The following para- 
graph ,is, I am pretty sure, in flagrante hello with some 
dozen of his straggling assertions. 

Paragraph 18. "The terms regiment and corps, as used 
in the 61st Article of War, will be considered as synonj'mous. 
(Decision of the President of the United States, announced 
m Orders, July 1, 1816.)" 

The question is here, not what are the several significations 
of the word " Corps ;" for it has as many as either the noun 
" body," or " state ;" but what is its meaning, as used in the 
61st Article of War ; or,. what is the same thing, what is a 
corps in relation to hrevet-rank. 

It has just been shown, that the 61st article is the only 
positive legislation of the country afiecting the rights of 
brevet officers, in respect to commands ; and that General 
Gaines now admits (letter, Jan. 11, 1826,) what had elsewhere 
been demonstrated by me, that, that article does not embrace 
" general officers and all," but only regimental officers. Never- 
theless, it will be seen in the pamphlet, that in discussing his 
claims to precedence'in rank over me, he has slyly borrowed, 

3 



18 Imputation Second. 

and used the word " Corps," as applicable to brigades, divi- 
sions, 6fc. Hence he objects, I suppose, to the paragraph 
quoted. 

Now it might, against any other opponent, be sufficient for 
me to point to my recorded declaration not to avail myself 
of any thing in the book, (unless the principle had pre-exis- 
ted ;) and that, independent of President Monroe's sanction, 
in 1825, President Madison had sanctioned the same princi- 
ple, in 1816. I shall, however, show it to be of much older 
date. 

It has often been stated, that our article of War, on brevet- 
rank, is substantially, and almost literally, the same as the 
British article on the same subject. We, in short, borrowed 
ours from the parent country, Sep. 20, 1776. The following 
is the official exposition of the British article. 

"When Corps join either in camp, garrison, or quarters, 
the eldest officer, whether by brevet or otherwise, is to com- 
mand the whole." British Regulations and orders for the 
Army — editions , 1811, and 1813, p. 4. 

Here " corps" is the only word used to embrace regiment 
(the general term) and corps — as " Cape Corps," " African 
Corps," &z;c. &ic. So in the British annual Army list ; under 
those precise heads. Cape Corps, African Corps, there are 
two columns for the rank of the officers — one for " rank in 
the regiment," (not corps-rank) and the other column for 
brevet-rank, or, " rank in the army." In the British army 
then, regiment and coips, in respect to brevet-rank, are synony- 
mous terms. 

And so again, in our revolutionary war. General Washing- 
ton, in a letter on a case of hrevet-rank, says : "Detachments, 
which are again to return to their corps, can be deemed noth- 
ing else but temporary commands, whether they are out for a 
week, for a month, or for a campaign, they are still tempo- 
rary. The permanent commands, are of regiments, and other 
established corps." See Rogers^ American Biography, p. 323. 
It may be asked, what " established corps ;" that is, per- 
manently organized corps, have we in our service, other than 



Imputation Third. 10 

regiments ? I answer, that, we have had many, and now have 
the corps of Engineers, and the Marine Corps ; — whereas, we 
have not, at present, organized, a temporary brigade or division, 
except, perhaps, a brigade at the Infantry School of Practice. 
What then becomes of General Gaines's attempt to show, that 
brigades, divisions, (and even the entire army) are corps in 
the sense of the 61st article of War, which, alone, aflfects the 
question of brevet-rank ? He quotes, from the Regulations, 
the word " corps" applied to brigades, divisions, &ic/raaking 
part of an army in the field, and which, even in that case, in 
the language of General Washington, though " out for a 
campaign," are still temporary corps — not regiments, or 
" other established corps." 

3. If the whole army be one corps, according to General 
Gaines, and in the sense of the 61st article, the exercise of 
brevet-rank would be at an end — the acts of Congress to the 
contrary notwithstanding. 

I had said (letter, Jan. 1, 1825,) that, " the 61st article of 
War, only operates a restriction on the brevets of regimental 
officers. As major-general, or brigadier-general, I belong to 
no particular regiment, or corps." — On these two sentences 
General Gaines has fastened with an ignorant joy; — quotes a 
passage of the Regulations upon me, and distinctly gives me 
the lie ! (Pamphlet, p. 11.) I shall content myself with 
showing, that his knowledge of grammatical construction is 
on a level with his manners. — This is his quotation from our 
Regulations. 

*' Base of discipline, or subordination. It is the intention 
of the government, that there be established in every regiment, 
or corps, and throughout the army, as one corps, a gradual 
and universal subordination, or authority — which, without 
loss of force, shall be even, mild, and paternal ; and which, 
founded in justice and firmness, shall maintain all subordi- 
nates in the strictest observance of duty." 

The point is in the three or four first lines, and turns on 
the words " as one corps." And let it be borne in mind, that 



20 Imputation Fourth. 

" discipline" is defined in another part {Paragraph, JVo. 295) 
of the same book, to mean, technicall}', " correction ; the 
enforcement of subordination," Sic. The plain import then 
of the paragraph in discussion, is, that subordination shall 
not only prevail in a single regiment, or the corps of engi- 
neers, from its colonel, through the field officers downwards ; 
— but throughout all parts of the army, as one corps (by assir- 
milation) under the President, through the generals and ge- 
neral staff, downwards. 

Johnson's quarto Dictionary gives thirty definitions, or 
shades of meaning, under the conjunction, as. " 1. In the 
same manner with something else." " 6. Like; of the same 
kind with." "8. As if; according to the manner that would 
be, if.'' " 10. As it were; in some sort." " 30. As though; 
as if." — Home Tooke used pleasantly to say, that his life 
had been put in jeopardy by Lord Mansfield's ignorance of 
the etymology of the conjunction and. My honour and vera- 
city have been seriously assailed by General Gaines's gross 
ignorance of the meaning of the conjunction as ! 

4. In my letter, Jan. 1, 1825, published and replied to by 
General Gaines, I had said that, he (in September, 1814,) 
after I had received the rank of major-general, by brevet, 
admitted me to be his senior, or superior officer, in the pre- 
sence of Major Worth. I had not then a line from Major 
Worth of any sort, on the subject ; but immediately wrote to 
him for his recollections. His note, or certificate, to the point, 
was made part of my suppressed letter, February 5, 1825, 
and is now with it in the Department. About the end of 
the last month I wrote to a friend in Washington, to procure 
and transmit to me a copy of that document ; and, also, co- 
pies of other papers wanted for this review of the controversy 
between General Gaines and myself. Only a (ew of the pa- 
pers thus unofficially asked for, have been received. My 
request has been repeated through the same channel ; but Ma- 
jor Worth's certificate is not yet come to hand. I have by 
rae, however, his miscellaneous letter which enclosed the cer- 



Imputation Fourth. 31 

tificate, and which recites its substance. I shall, presently, 
have occasion to quote from the letter ; but beg that the cer- 
tificate itself may be specially referred to. 

As General Gaines has had the hardihood to deny ever ha- 
ving admitted me to be his senior ; or, what is the same thing 
in military language — his superior officer ; and has shame- 
lessly published his contradiction, I solemnly reassert my first 
declaration ; and will add, on the faith of that single testi- 
mony, that he made again the same admission to me as late as 
the year 1816, or, if by letter, perhaps in 1820. Private let- 
ters I do not generally file, and if one of his be preserved, 
containing such admission, it is now with my papers, of that 
period, in Richmond. But this I most distinctly remember 
and aver, that since 1815, General Gaines expressed himself 
orally, or, in writing to me, to this effect : — whilst he would 
ever protest (on some special ground stated) to the rank of a 
third person, whom he named, and who had also been placed 
over him, by brevet ; he ivould cheerfully yield to my seniority. 
My assertions, however, I know he will again contradict, and 
I give him the benefit of such contradiction. — I come now to 
the letter of Major Worth, before me, and which relates to the 
period of 1814, only. 

(Extract.) 

" West-Point, Jan. 9, 1825. 
" 1 received your letter yesterday, but by the winter's ar- 
rangement of the mails, my reply cannot be despatched till 
to-morrow. In endeavouring to be concise, as you suggest, 
I have not gone much into detail, yet have stated clearly the 
fact of his [General Gaines] having yielded the point of pre- 
cedence on several, and particularly on one occasion, at Al- 
bany ; and, also, his remarlc of your having got the rank of 
him. I distinctly recollect the remark, but whether it was at 
Albany, Utica, or on the journey, I am not precise." — This 
is the whole of his letter relating to the points in controversy, 
or to General Gaines. — The following note or certificate, is 
from Major Belton — tlie original is in the War office. 



22 Imputation Fourth. 

" Baltimore, 18th March, 1825. 

" Sometime in September 1814, while Major-Generals 
Scott and Gaines were in the city of Albany ; having then, 
in consequence of wounds, retired from the army of the Nia- 
gara — on the occasion of a public dinner, given by the citi- 
zens to those gentlemen, and soon after the receipt of their 
brevet commissions, precedence was given by General Gaines 
to General Scott. 1 was the A. D. Camp to General Gaines, 
and recollect discussing the subject of the relative rank of 
the parties, with Major Worth, the A. D. Camp to Major 
General Scott." — The copy before me is in the hand-writing 
of my late aide-de-camp, now Captain H. Smith. 

I will add one more support to my declarations above. It 
is a letter from Major Crane. He, in the first part of the let- 
ter, convinces me that it was with my aide, Mr. Gait, and not 
myself, that he had conversed some years before, on the sub- 
ject in question. 

"Fortress Monroe, Dec. 17, 1826. 
" Dear Sir : 

" I have received your favour of the 13th instant ; in which, 
you say, I stated to you, some years since, that General Gaines 
had made a declaration in my hearing, that you had become 
his superior officer. I do not recollect ever having any con- 
versation with you on the subject ; but there was a communi- 
cation between Lieut. Gait and myself, relative to it. — From 
the great lapse of time since this occurrence, I am unable to 
recollect, distinctly, all that passed ; but a short time after 
the battle of Chippewa, a report reached Sackett's Harbour, 
that you was brevetted for that action, and to the best of my 
recollection, I was at head-quarters when it was first men- 
tioned. General Gaines was present, and observed, when this 
report was communicated, that he was glad of it ; that you 
deserved it, and, that he would serve under you with pleasure, 
or something to that effect. I considered these remarks as 
elicited by the most friendly feelings towards you, and his 
satisfaction at your being rewarded for your distinguished 
services, on that occasion. My impressions are, that several 



Imputation Fourth. 23 

other officers were present ; but at this distant period, I cannot 
be positive as to the fact. 

" I am, he. &c. 
(Signed) « I. B. CRANE. 

" To Major-Geueral W. Scott, Richmond, Va." 

I transmitted Major Crane's original letter to the War De- 
partment. The copy before me is certified by Col. Jones, 
adj utant-general. 

Can the weight of testimony, here adduced, independent 
of my own declarations, be resisted ? — I shall have occasion 
to show, under the second general head of this review, that 
by every act of the government, and the common understand- 
ing of the country, as well as by the admissions of General 
Gaines himself, above, I was, contemporaneously, and univer- 
sally, regarded as his superior officer. 

General G. in his reply to my letter, Jan. 1, 1825, — speak- 
ing of Major Worth, asks : — " Did the Major make a memo- 
randum of the conversation referred to, at the time it occur- 
red ? *****^* Can it be possible that he [General S.] should 
have been so provident, as to prepare, in 1814, what he seems 
to conceive a remedy for an evil in 1825, by imposing on his 
aide-de-camp the invidious task of noting down my unguarded 
remarks, and placing on them a construction that they could 
not reasonably bear ?" (Pamphlet p, 16.) General G. well 
knew the injustice of these sarcasms. He well knew the no- 
ble and chivalrous character of Major Worth — to whom, no 
man dare make a request which honour might not sanction. 
General G., also, knows that, unlike himself, I never desired, 
or permitted my aides-de-camp to write polemical pamphlets 
and replies, in my favour — to go forth with extravagant praises 
of my own. That he has permitted and done these acts, see 
his pamphlet under consideration, ^rt«"es 18 and 20. — To ask 
for certificates from honourable men, to facts known to be 
within their knowledge (to repel wanton outrage) is not only 
fair, but an obligation of duty. Even this I have been slow 
to do, as this review demonstrates. 



24 Imputations Fifth and Sixth. 

6. An associated accusation against me in the pamphlet, is, 
that 1 am a stickler for high places at the festive hoard, and 
General G. feebly admits having yielded precedence to me on 
an occasion of that sort. It is remembered, however, by 
more than himself, that at the public dinner in question, with 
which he and I were honoured by the patriotic citizens of 
Albany, there was at least ceremony at the introduction ; and 
that, the point of precedence was stated and yielded by him- 
self, on the express ground of rank. What my manners are, 
in private, or public parties, shall be left to others to deter- 
mine ; but he has heard me express a contempt for extra ce- 
remony, on ordinary occasions, in a dialect which he knows 
not even how to repeat. — This imputation was, also, repelled 
in my suppressed letter. 

6. In 1821, a Board of General Officers was called to 
Washington, General Brown, president, to aid in the reduc- 
tion of the army. — Speaking of that Board, and addressing 
himself to General Brown, (letter, Jan. [30], 1825) General 
Gaines intimates, that he thus threatened and silenced me : — 
General Scott's " suggestion of an opinion that I had taken 
the position to which he was entitled, was promptly met hy a 
decided remark on my part, that I perfectly understood, and 
should at all times occupy, the position to ivhich my military rank 
entitled me. Here the conversation ended, and I continued, 
without interruption, to occupy my proper station on your 
[General Brown's] right." Pamphlet, p. 12. 

That General Gaines ever presumed, in my presence, to 
utter the foregoing threat, or to speak to me in a tone not at 
once subdued and respectful, is absolutely untrue. I appeal 
to all who have ever seen us together for the truth of my as- 
sertion. He adds to his report of that threat — " Here the 
conversation ended" ! 

Now, at the moment we were about to take our seats at the 
board, " the suggestion of an opinion" made by me, was sub- 
stantially, and fully, to this efi'ect : — " I am the second, in 
rank, in the whole army ; but, by the second paragraph, third 



Imputation Sixth. iS 

article of the Regulations, recently adopted, I am barred, on 
this particular occasion, from taking my place according to 
that rank." I then quoted the paragraph, beginning, " brevet 
rank shall take command or efiect, only in the following 
cases." This sentence is followed up by a precise enumera- 
tion of cases, and in which enumeration, military Boards, or 
Boards of officers, are not mentioned. Having pointed out 
this defect or omission in the paragraph, I continued — " the 
rule of construction is, as exception strengthens cases not ex- 
cepted, so does enumeration wkaken cases not enumerated. I 
am, therefore, as I now discover, debarred by a regulation, of 
my own compiling, from claiming, here, that precedence, 
which, on any other occasion, would be my right." General 
Gaines politely made some slight remark, which neither 
positively affirmed or denied either proposition which I had 
advanced. I rejoined, in the same tone, that — " if General 
Brown, at any time retired, I should consider the meeting as 
a detachment, and claim my rank accordingly." " Here the 
conversation ended." General Brown did not retire from the 
Board during the session. And this is the case in which 
General Gaines once enjoyed a temporary and nominal pre- 
cedence over me — and that, too, under one of those para- 
graphs, of my compiling, to which he has since so violently 
objected ! — It has been seen, above, that, at my special in- 
stance, that paragraph, and the one which followed, were ex- 
punged from the present Regulations. 

Again it should be remembered, that all these matters were 
stated and exposed in my suppressed letter — a letter too, 
which would not have added more than three pages to his 
pamphlet, and there are three blank pages in the centre of 
each copy that has fallen into my hands !* 



* The foregoing was copied by me for General Scott from his MS. up 
to this point, when (Feb. 24.) he received the letter from Mr. Secretary 
Barbour of the 19th Feb. 1827, post-marked Washington-City, Feb. 21 — 
enclosing copies of the letters from General Gaines of the 1 Ith January, 
and 25th October, 1826, addressed to the Department, with a cof^ of 

4 



26 Imputation Seventh. 

7. General Gaines, in the same tissue of abuse, letter, Jan. 
[30], 1825, tells the story of his Court in 1816, and more 
than insinuates that my being placed on it, as President, was 
the result of an intrigue between Mr. Secretary Crawford and 
myself. In reply, I solemnly aver, that to the best of my 
knowledge and belief, not a word ever passed between Mr. 
Crawford and myself in relation to that case. My person 
even, was probably unknown to Mr. C. at the time that the 
trial and my name as President of the Court, were deter- 
mined upon. I had been absent from the United States, and 
on arriving at Washington, via Baltimore, had not heard of 
the charges against General Gaines. General Parker, the 
Adjutant and Inspector General, gave me the first intelligence 
of the charges, and, in part, of the composition of the court. 
I exclaimed that I was the friend of General Gaines — that I 
did not believe him capable of crime, with other similar de- 
clarations. An officer, present, modestly interrupted me, and 
said to my great surprise, that he was the prosecutor ; that 
he wanted nothing but a fair investigation of the charges he 
had preferred, &ic. he. I rejoined, that I should feel bound 
to object to myself, and particularly after what I had incau- 
tiously said, and appealed to General Parker — intending he 
should represent my declarations to the Secretary. Colonel 
Trimble, the prosecutor, an honourable and gallant man, 
since dead of wounds received at the sortie from Fort Erie, 
expressed a hope that I might not be excused, and there the 
conversation, and my intercourse with Colonel T. for years, 
ended. With him, it is proper to add, that accident had 
never thrown me in the way of cultivating either friendship 
or intimacy : but, in common with the whole army, I knew 
his character and services, and held them in great esteem and 



Major Worth's certificate of the 9th January, 1825, all of which papers 
are referred to above. 

P. H. GALT. 
These papers will be found noticed by me in the sequel. The letter, 
Jan. 11, 1826, is not certified. W. SCOTT. 



Imputation Eighth. 27 

admiration. As to my individual opinion and votes on the 
trial, these (on account of the usual injunction of secrecy) are 
only known to my associates. Between the parties, however, 
I may say, that my duty was fairly and justly performed — 
for the sincerity of which declaration I confidently appeal not 
only to the members of the court, but to that Power to 
which was given the sacred pledge of an oath. And here it 
is due to General Gaines to add, after this solemn allusion to 
his case, that he was fully and honourably acquitted by the 
court of every accusation on which he was tried. My regard 
for him remained after the event, as before, and so continued 
till the spring of 1822. Subsequently (in that year, or, in 
1823) I ascertained that under the pretence of deciding a 
question of rank between Colonels Fenwick and Clinch, at 
Pensacola, he had made a most insidious attack on the third 
article of the Regulations, so often mentioned above : but I 
became not his enemy till 1824. 

These details will, I fear, be found tedious to the Depart- 
ment. To one who has been his friend, they are something 
more. 

" Meantime I seek no sympathies, nor need ; 

" The thorns which I have reape;! are of the tree 

" I planted — they have torn me — and I bleed : 

" I should have known what fruit would spring from such a seed." 

8. I had said, in my letter, Jan. 1, 1825, (See pamphlet, 
p. 4,) that. General G. on the occasion noticed, and whilst I 
was the commander of a department, as well as President of 
his court, had, on his arrival at New-York, reported to me, 
in person, as he would have reported to any other superior 
officer. [ knew at the time of writing that letter, that it 
would be sent to him for his remarks, or reply ; but I had no 
conception even then, of his powers at hardy and shameless 
contradiction. I now acknowledge that I did wrong to state 
any thing whatever on the authority of my own simple decla- 
ration. The statement was, nevertheless, true to the letter. 
He has contradicted, but not disproved it. The point, how- 



28 Imputations J\''intfi and Tenth. 

ever, is otherwise unimportant ; and I am willing the contra- 
diction should rest on the comparative tenacity of our me- 
mories, or, if he prefer, on our respective characters for vera- 
city. 

9. I extend the same remarks to his denial of my having, 
to relieve him from the strict duress to which his arrest would 
have subjected him — " enlarged his limits [of course as his 
senior, and commanding officer,] either by an order, in the 
usual form, or by a letter addressed to him personally ;" and 
I will add, it is quite possible, if my office books of that 
period (now, as I suppose, in the Adjutant General's office, 
Washington,) be examined, such order, or letter, may be 
found therein recorded. 

10. General G. in different parts of the same letter, speaks 
of my position on his court as " an assumed authority over" 
him; of his never, when not in arrest, suffering " mutiny to 
erect itself near" him ; — calls me his " heartless junior puffed 
up with a little brief authority," and " exercising a vain glo- 
rious triumph over [my] swordless senior." (Pages 14, and 
15.) I can only appeal to the surviving members of the 
court, and to the many hundred spectators, who were present 
at the different parts of the trial. By all these 1 have no 
doubt it will be remembered, that my conduct towards Gene- 
ral G. was delicately courteous. He frequently lost his tem- 
per and presence of mind ; but I was, nevertheless, patient 
towards him. My conduct would have been the same towards 
any other individual standing in his relation to that court. 
But I am not done with these his sarcasms. He was my 
•' swordless senior," it seems, and, therefore, could not repress 
*' mutiny in his heartless junior." I beg that this may be 
borne in mind a moment longer. 

I had stated in the letter to which he replies, that within a 
few days after his release from arrest, the Governor of New- 
York, in the presence of an immense concourse of officers, 
principally of the militia, being about to present swords on 



Imputation Eleventh. 29 

the part of the State, to General G. and myself, asked us, then 
standing side by side, which of the two was the senior ? That 
being told that I was, General G. assented, and accordingly 
my sword was the first presented. [See pamphlet, p. 1.) 
This declaration General G. {jpamphlet, p. 16.) recites, as if 
for the purpose of contradicting it; but immediately remem- 
bering who had witnessed the ceremony, his heart fails him, 
and he flies off into a patriotic homily (intended for the pub- 
lic) on the ceremonies of a dinner table ! This is no exag- 
geration. Why did he not, on that proud occasion, repress 
"mutiny" in his "heartless junior ?" He was no longer 
" swordless ;" he had two mortal weapons. Why then did 
he not draw on his " heartless junior," and exclaim — " Let 
this my sword report what speech forbears ,^" But this did 
he not then, nor at any time ; and I shall presently have oc- 
casion to show, in his own words, that with all his zeal for the 
suppression of " mutiny," he is, " for reasons recorded in all 
written law on the subject," " no disturber of the peace," but 
amiably confines himself to the circulation of vindictive 
pamphlets, and manuscript letters, of a " giadiatorian aspect," 
against the object of his resentment. But 1 will not antici- 
pate my remarks on his letter, Jan. 1 1 , i 826, (in respect to 
the challenge.) {Note. The foregoing accusations against 
me were noticed and repelled in my rejoinder, Feb. 5, 1825. 
Hence another reason why it is not found in the pamphlet.) 

n. Of the Imputations cast upon me by the letter, Jan, 
[30], 1825, there is one more that I shall notice at this time. 

The writer [pamphlet, p. 17) is pleased to speak of my pro- 
ductions and style as hackneyed, crooked, interminable, calum- 
nious, ill-advised, and ill-designed — all of which epithets he 
has crowded into one sentence of less than three lines ; and, 
in one of his inedited letters to me, (July 26, 1824,) which, I 
have no doubt, he has already circulated, and will inconti- 
nently print — without the " rejoinder," he alludes to a " par- 
ticular description of writing for which [I am] known to be 
so much distinguished." I shall take the liberty to reply, 



30 Imputation Twelfth. 

that these misfortunes of style may result from the fact, that, 
what purports to be my writings are, in truth, my own ; — that 
in reporting a battle I never 3'et stole the pomp, the manner, 
the words of Ossian — although the great Napoleon was an 
admirer of that bard : — That I never yet stole an harangue, 
words and all, to publish to militia under my command, when 
there was not an enemy within the possible reach of them — 
and, that I never yet desired, or permitted, my aides to write 
pamphlets or replies for me against my opponents. These 
things General Gaines knows himself to have done. 

12. I come at length to the subject of the challenge, and 
the last imputations contained in the pamphlet, which I shall 
directly notice. See his letter, Jan, I I, 1826, p. 25. 

Perhaps I may be thought to owe an apology to the De- 
partment for presuming to- allude to matters prohibited by 
the articles of war ; but, on reference to the 88th article it will 
be seen, that all prosecutions for offences against that code 
must be commenced within the two years next immediately 
after the alleged infractions. The two years, in my case, 
elapsed in July last. It is, however, not the fault of General 
Gaines that my arrest was not ordered in time. He tells the 
Department (and it seems in a duplicate, the original of which 
had gone sometime before through the General-in-Chief,) 
that " great efforts have been made to give currency to an 
opinion that I am a disturber of the peace, [by whom ?^ and 
at the same time to show that I have refused to accept a chal- 
lenge." " But, to say nothing of a certain article of war 
upon the subject," he. — " Upon the subject of the challenge 
I should not presume to address 3'ou, had not that officer 
[General S.] in his official communication to you of the 5th 
February last [General S.'s suppressed letter] referred to it." 
*• But since this compiler of regulations has made his avowed 
challenge the subject of an official communication to you," 
he. Here then were two attempts to get me arrested and 
" killed off by a court-martial" — one addressed to the Gene- 
ral-in-Chief, and one to the Department of War. 



Imputation Twelfth. 31 

Now it is here proper to bring into view, that I had but 
obscurely alluded to the challenge, and its non-acceptance, as 
a reason, why 1 was not to be expected to stoop to answer the 
abuse which General Gaines had lavished upon me. But 
General G. procures a copy of the letter — not ^oy publication^ 
as we have seen ; — but to interpret what might not otherwise 
have been understood ; whereas, if I had been, (without the 
aid of his interpretation) put on my trial for that particular 
sort of offence, 1 should not have confessed, but have thrown 
the burden of proof on the prosecution. General G., then, 
took upon himself the odious part of an informer ! He 
wished to have me cashiered by a court-martial for sending 
him a challenge — for, that sentence, and no other, can be ren- 
dered, if a charge of this sort be supported ! This was his 
brief argument for settling the question of rank between us. 
This was " the paper bullet" that was to destroy me ! 

But General G., though he urges my official avowal of the 
challenge as a sufficient ground for cashiering me, denies ha- 
ving known, at the time, he had been challenged ! Tt is impos- 
sible to comprehend his double crime of falsehood and equi- 
vocation, on this point, without contrasting its true history 
with a view of his letter. 

I had heard, in the western country, that he had charged me 
with an act of great unfairness, — nay dishonour, in respect to 
the third article of the regulations, the history of which has 
been given above. Indeed it is the same accusation which is, 
there, triumphantly refuted. I addressed to him a courteous 
letter of complaint, July 25, 1S24, not doubting that he would 
explain or retract; for, I reminded him of most of the facts 
given above, to show the injustice of the imputation. In his 
reply, dated the following day, he, to my great surprise, add- 
ed outrage to the injury complained of. — That he expected, 
and was ready to receive a challenge, did not admit of a 
doubt. We were now both in the city of New-York, and in 
the same street. Having my family with me, in one hotel, 
and he, his, in another ; — wishing for an opportunity to make 
some obvious arrangements, and expecting that he would be 



82 Imputation Twelfth. 

glad of a similar opportunity, I promptly sent him a sealed 
note, to say that, in a very few days, (on the arrival of a mi- 
litary friend whom I had sent for,) he would receive a note of 
a more specific character from me. I set about making the 
arrangements alluded to, and supposed him to be similarly 
employed. But, again, to my great astonishment, after that 
note had been in his possession not less than twenty-four hours, 
it was returned unopened by his aide-de-camp, to one of mine! 
We were both, it will be remembered, in the same street. — 
Supposing that he had objected to the etiquette of handing 
him a sealed note, when he looked only for a written, open, 
direct challenge, delivered in form ; and indignant at this 
new outrage, 1 instantly engaged the first friend at hand to 
take to him such a note. That friend immediately waited 
upon him, and tendered " a direct communication from Ge- 
neral Scott." He replied, " he could receive no communi- 
cation from General Scott, until the official point between 
them was settled.'' — There were several persons privy, at the 
moment, to this transaction, who must, if called upon, testify, 
that General Gaines kneio, and acknowledged that he knew, the 
" special communication" was a challenge. 

It will be curious now to observe, with what a mixture of 
falsehood and equivocation, this public informer manages his 
notice of the same affair. " I never, to my knowledge, re- 
ceived a challenge from General Scott, or any other officer," 
[with along confession of his amiability, &ic.] " I do not feel 
at liberty to mingle the discussion of a question of rank with 
the gasconade of any man who ventures to speak of a 
challenge." [He had impeached my honour and fairness 
as a man.] " I did receive a letter from General Scott, which 
I returned unopened — it was not however mentioned to me as 
a challenge." [True : but not a word about the " special 
communication" presented by my friend.] " Although I have 
no knowledge of ever having received a challenge from Gene- 
ral Scott" [that is, he did not know the sealed letter was 
one ; — not a syllable about the special communication] — " yet 
I will credit his statement in this case so far as to admit, that 



General G's letter, Oct. 25, 1826. 9| 

he may have sent one ;" — [that is, again, the sealed letter ^ 
— no allusion to the special communication] " and I hereby 
agree," he. — the result of which is, if he can persuade him- 
self that the interests of the army, and those of his beloved 
country, do not forbid his risking his most valuable life — why, 
he may — " without ever having committed himself" — do 
what? Deliver over again his homily upon controversies of 
** a gladialorian aspect ;" — upon " the reasons recorded in 
all written law upon the subject ;" on the modes of exalting 
himself " in the hearts of his countrymen ;" — on the neces- 
sity of being "just and true," instead of being " always 
ready to take away the life of his fellow-man, who detects 
him in acts of injustice and falsehood" ! — " Hie thee, gentle 
Jew. This Hebrew will turn Christian ; he grows kind. 

Bassanio. I like not fair terms and a v n's mind." — But 

I beg pardon of the Department for this sally. I will add but 
a remark or two more. 

If General Gaines meant to rely on either meekness or cou- 
rage, instead of their opposites, why did he answer my cour- 
teous letter of complaint, in the language of outrage .'' Whence 
his volumes in print and in manuscript, of sturdy contumely 
and low revenge ? Would a christian, or even a heathen phi- 
losopher ; — would a soldier of honour, have done this ? iVb/ 
All must reject him as a hypocrite unworthy of either fra- 
ternity — as a man of mere " words, words, words!" 

February 24th. Within a few hours past I have received 
from the Department the papers mentioned in a preceding 
note. 

The letter of General Gaines, Oct. 25, 1826, to the De- 
partment, which I now behold for the first time, fires me, if 
possible, with increased indignation. I had thought that his 
versatility in the arts of violating every principle dear to the 
honour of a soldier, had been exhausted. To the new talent 
which he has displayed, I will not, however, give a name till 
it is fixed on him by demonstration. — The letter (copy) before 
me, makes 20 pages ! 

5 



84 Character of the incendiary letter. 

He opens on the subject of brevet-rank ; solicits the early 
attention of the President of the U. S. to his case ; tells 
of his having been favoured with the views of the Secretary of 
War on the subject at his house, January, 1826; mentions his 
silent, confiding expectations in the President ; and adds, 
that he would not again break through that silence but on ac- 
count of other officers — those of regiments. This is most 
confiding and most disinterested ! But before I proceed fur- 
ther, let it be remembered, that this letter was intended as 
much for secret .circulation among the classes in the army 
which are mentioned — I mean the writer's supposed partisans 
in those classes, — as for the eye of the Department. My 
first knowledge of it was received, as has been seen above, 
through a letter from an officer at the Infantry School of 
Practice near St. Louis, where the circulation of the incen- 
diary letter was detected. 

The next six pages are exclusively devoted to the captains 
of the army — a numerous class, to whom the writer addresses 
himself manifestly in the belief, that they may be won over, 
and formed into a party against me, — who, for the moment, 
however, he prudently keeps in the back ground. He tells 
the captains, that they constitute the most essential grade ; that 
their pay is inadequate, a pittance — reminds them of their 
talents, experience, gallantry, integrity — sufficient to fit them, 
in every respect for the higher, and even the highest com- 
mands ; contrasts them favourably with bureau officers, and a 
splendid staff ; depreciates the quarter-master's department — 
more military mind required at the head of a company ; — 
General Regulations, in respect to company books, impose 
cruel hardships on captains — (the first hint of the writer's 
purpose !) Returns to the captains, and the comparison with 
the quarter-master's department. Again to the disadvantage 
of the latter ; — the soldiers helpless, but may safely confide 
in the talents and fidelity of their captains ; the latter, after 
five years, to be selected (with field officers) to be quarter- 
master general, commissary general of subsistence, adjutant- 
general, and inspector-general. 



Character of the incendiary letter. 35 

Next he turns his parental regards on the brevet-majors, — 
also a pretty numerous and efficient class ; and here his pur- 
pose against me opens more fully. This class of officers he 
hopes, it would seem, to enrol at once. He tells them, (for 
be it remembered, what he addresses to the War Department 
is intended for circulation in the army — that is the manner of 
his sedition — ) that " the manifest intention of the laws [re- 
lative to the pay and emoluments of brevet-rank] has been 
defeated by General Regulations." [Note. These topics are 
resumed in the peroration.) He then interposes, although 
his letter is not an inspection-report — an elaborate panegyric 
upon a brevet-major, whom he knew to be a personal enemy 
of mine (though 1 believe an honourable one) and to whom, 
no doubt, a copy of the letter under review, was sent dlrectl}^ 
or indirectly, as soon as the original was despatched ; for that 
major belongs to the School of Infantry Practice near St. 
Louis, whence I derived my first intelligence of the letter. 

And here am I not permitted to conclude, that other copies 
have been distributed with equn\ judiciousness ? 1 mean no 
imputation on that major, nor on any other officer who may 
have received a copy of the harangue with which accident 
has brought me acquainted ; but I will maintain, that such a 
production coming from an individual high in rank and com- 
mand; bearing too, upon the face of it, the address of the 
Secretary of War, is well calculated to make a deep impres- 
sion on the minds of junior officers, whatever may be their 
honour and intelligence. 

This military demagogue having, as he flattered himself, 
stirred up a spirit of mutiny against me, seems to say — " Pa- 
tience, gentle friends !" — "It is not meet you know" how much 
I love you ; " I am no orator, as Brutus is ; but, as you 
know me all, a plain blunt man ;" — now suddenly turns upon 
me and discharges, at once, his loose rabble of accustomed 
accusations ! 

The first class, dug from the mire of abuse, in which 1 find 
them, as usual, deeply embedded, are these : — 



36 Imputations Thirteenth and Fourteenth. 

13. 14. That the *' manifest intention of the laws" giving 
pay and emoluments to brevet-officers, " has been defeated by 
General Regulations y This he brings home directly to the 
brevet-major above alhided to ; and endeavours, by sympa- 
thy and interest to bring it home to every other brevet-major. 
Then as applicable to all brevet-officei's, he charges it as a 
crime founded on secret hostility to him, that I had not in- 
serted section 4, act, July 6, 1812, in the appendix to the 
General Regulations. 

13. The " illiberal construction of the law" can only apply 
to No. 1124, relative to pay and emoluments. 

Now General Gaines knows, that both he and I, as early as 
1820, before my compilation was published, protested, in our 
OWTI cases, against that very " construction of the law." He, 
therefore, absolutely knew JHtjEfH; that I was not its author ; — 
that it was a construction and a regulation before that compi- 
lation existed ! And here I will add, that before I knew of 
the charge I am now combatting, I had incidentally stated my 
exertions in 1825, (united with those of the Paymaster-Gene- 
ral,) to get that construction altered, — more particularly to 
benefit the brevet-majors. See above, p. 13. So in Decem- 
ber, 1825, on the request of certain Captains, I addressed an 
argument in behalf of that rank of officers, to the chairmen 
of the two military committees (with an apology) accompanied 
hy B. projet of ^ bill, — for which I received the polite acknow- 
ledgments of the chairmen ; and which same projet, as I am in- 
formed, has passed one house of Congress at the present ses- 
sion. General G. was in Washington at the time my letters 
reached that place ; and, probably, having heard of them, has 
addressed an harangue to the Captains themselves ! 

14. But I neglected to insert section 4, act, July 6, 1812, 
in the Appendix to the Regulations ! The charge heretofore 
combatted and refuted, was, that I ought to have referred to 
this section in the third article of that book. Let this con- 
tradiction pass. My object is not solely to show, that Gene- 



Imputation Fifteenth. 37 

ral 6. is inconsistent with himself; but that he is in flagrant 
opposition to truth and justice. 

I have already demonstrated, under the second specific im- 
putation, (above p. 16,) that section 4, act, July 6, 1S12, im> 
poses no restriction on the rights of brevet officers, in respect 
to commands, and that it is superseded by act, April 16, 1818, 
and No. 1 124, of the Regulations, — in respect to the question 
of pay and emoluments. Why then insert that section in the 
Appendix to the Regulations ? True, the section is the ori- 
ginal, and may be, an existing authority by which the Presi- 
dent and Senate might confer brevet-rank. But was not Ma- 
jor Cross, at the instant of my omission (winter of 1824-25,) 
instructed to collect and publish, by authority, all laws whether 
repealed or in force, relative to the army ? And has not this 
work (executed with great judgment and ability) been accord- 
ingly published, and placed in the hands of every officer in the 
service ? I objected to place in the book of Regulations (for 
the reason last given, and because I did not wish to swell the 
volume unnecessaril}') the acts which will be found in its ap- 
pendix ; and also, the article relative to the Military' Acade- 
my ; but the late Secretary of War thought it desirable that 
I should give the laws of daily reference in the army — such as 
the rules and articles of war, the act fixing the military peace 
establishment, &tc. ; and I, as in duty bound, complied. Was 
it for me, under such circumstances, and in a mere army ma- 
nual, to point out to the President and Senate the original au- 
thority under which brevet-rank had been conferred ? Does 
not the act, April 16, ISIS, which I did publish, sufficiently 
indicate to those high branches of the government — supposing 
either ever to look into such a manual — that the power, in 
question, is in full existence ? And, did my omission of an 
act, repeal it ? But 1 exhaust myself on this miserable slan- 
derer. The sentiment of manly indignation, in my breast, is 
succeeded by all the lassitude of contempt. 

15. General Gaines next recites the declaration from my 
letter, January 1, 1825, (printed in his pamphlet,) in which I 
say ; — " the 61st article of war only operates a restriction 



38 Imputation Fifteenth. 

on the brevets of regimental officers. As Major-general, or 
as Brigadier-general, I belong to no particular regiment or 
corps. My brevet-rank is, therefore, in law, as unrestricted, 
in respect to command, as the rank of Major-general Brown." 
It was to make good this position that he says, " I found it 
" essentially convenient" to omit section 4, act, July 6, 1812 ! 
My proposition, however, he does not dare to combat by ar- 
gument, and his malignant insinuation I have destroyed. He 
adds, " By that law (the same 4th section) it will be seen, that 
all officers, generals and all, are subject to the same laws." 
This, coming from any other source, and standing by itself, 
would have looked very like a truism. A simple reference to 
the section will nevertheless show, that the proposition is false. 
He proceeds : — " All are subject to, and all are restricted by, 
the 6 1st Article of War." If he mean here Generals and 
all, his letter, Oct. 25, 1826, not only contradicts me, but 
also his letter, Jan. 11, 1826, as I have shown above, (pp. 14, 
15.) Again, he contradicts his letter, Jan. [30], 1825, 
(printed copy, pp. 10, 11.) and once more I suppose him to 
contradict another letter to which he alludes (at the page last 
mentioned) thus : — " I have admitted in my letter to the De- 
partment of War, of the 30th April, 1821, more than my fur- 
ther reflection will allow me now to admit." And a little 
lower down on the same page, after giving me the memora- 
ble lie on the conjunction as (and on which he there mainly 
places his case) he connects the 61st article with the 62nd, 
and says, that these " embrace the very foundation of the pri- 
mary principles of brevet-rank in our service." He then 
proceeds (precisely according to my construction of the 
61st Article) to apply his " principle" " to all regimental 
officers, having brevets, even to the rank of Major-General. 
Regiments are the proper corps of such officers. Thus does 
General Brady's brevet, as brigadier, and General Atkinson's 
former commission of brigadier (recognised equally by the 
61st Article of War) entitle them to," Sic. — To these cases he 
might have added that of brevet Major-General Macomb, 
Colonel of the Corps of Engineers. I belong to no particu- 
lar regiment or corps. 



Imputation Sixteenth. 39 

I have given this formidable list of citations to show, that, 
in truth, General G. knows not on what to rely in support of 
his pretensions to seniority over me. He admits, asserts, re- 
tracts, re-asserts, and contradicts himself as he does every 
body else, but still has " more last words" of abuse for me. 
There is, however, a manifest design in all this. If he fail to 
crush me by the mere operation of piling up epithets, and 
giving to the question " a gladiatorian aspect," (his words) 
he, at least hopes to involve it, (as he has said in a letter de- 
precating ^flper controversies) into "labyrinths of inextrica- 
ble confusion." I merely wish, in this place, to expose his 
motives. The simple clew of extrication shall be furnished 
under another head. I return to his letter, Oct. 25, 1826, 
so lately received. 

16. The next topic is, the oath of an officer. This Gene- 
ral G. cites ; — confesses himself as usual, to be the amiable 
possessor of all the virtues ; — descants on gladiators ; on an- 
cient Roman anarchy, (his words) and "such branches of 
learning" (not his words) — but in the mean time states, that 
he has taken that oath j and that if / also have taken it, then 
am I guilty of one of the highest of crimes. This accusation, 
though hypothetical, would, if made by any other officer, re- 
quire at least a serious contradiction. It is, as will be seen, 
not accompanied by any specification whatever, and must, 
therefore, refer exclusively to the matters already discussed, 
(in relation to the Regulartions — and, perhaps, the challd^ge) 
and on which he has himself been brought to condign shame. 
Charges so made cost but little manual labour ; whilst to 
follow and refute them has a striking resemblance, in point of 
nausea, at least, to one of the labours of Hercules. 

But I have a charge to make against General G. in respect 
to that oath, which is both specific, and substantial. I had 
designed to place it under the second general head of this re- 
view — its technical position ; but I shall obey the laws of 
natural affinity, and insert it here. The proof, in support of 
this charge; would, if it stood alone, be sufficient to settle the 



40 Officers* oath — Commissions. 

question of rank between us, and that too, independently of 
the point of character involved. 

This is the conclusion of that oath : — " I will observe and 
obey the orders of the President of the United States, and the 
orders of the officers appointed over me, according to the rules 
and articles of War." Cross' Mil. Laws pp. 120, 158, Sic. 

Now my brevet, or commission, has these words : — " To 
all who shall see these presents^ greeting : know ye, that I 
[the President] do hereby cdiifer on Winfield Scott, of the 
army of the United States, the rank of Major-general, by 
brevet, in the said army, to rank as such from the 25th July, 
1814. [Then follow the causes or inducements.] ^^ And 1 
do strictly charge and require all officers and soldiers under his 
command to obey and respect him accordingly : and he is to 
observe and follow such orders and directions, from time to time, 
as he shall receive from me, or the future President of the U. S. 
of America, and other officers set over him, according to law, 
and the rules and discipline of IVar.^^ [Note. A " brevet'* 
conferring extra rank, and a " commission" conferring ordi- 
nary rank, are (as the words signify) substantially the same. 
For example, all the words quoted and underscored above, 
are common to both : — both are signed by the President, and 
countersigned by the Secretary of War, under the seal of the 
War Department ; and, finally, a brevet is as much founded 
on express law, as an ordinary commission.*. 

General Gaines's brevet, as indeed every other army com- 
mission, must contain every important expression above, with 
this difference : — his date of rank is, August 15, 1814. I am 
then by twenty-one days {one would suffice) in the language 
of the oath, " appointed over him ; or to quote from his bre- 
vet — " Set over him according to law, and the rules and dis- 
cipline of War." 



* My brevet is in the War Department, with my other papers relative 
to the question of rank. The above is given from a printed form before 
me. I have, of course, filled blanks with my name and date of rank. 
The inducemenU to the rank being complimentary, are omitted. 



Officers* oath — Subordination. 41 

He has taken the oath. He admits the fact. Contrast 
now that sacred obligation, and the solemn injunction to be 
found on the face of all his commissions, laid upon him by 
the constitutional " commander-in-chief of the army and 
navy of the U. S." — with his recent endeavours to resist my 
right to command him ! Commentary on the enormity of 
those endeavours would be superfluous. 

But, perhaps, he will attempt to excuse himself under the 
words " according to the rules and articles of War" in the 
oath, or the words " according to [law, and] the rules and 
discipline of War" — to be found in all brevets, or military 
commissions. — He shall not escape on this ground. Nay 
nothing short of an open and full confession of gross igno- 
rance shall take him out of the awful position which he has 
assumed. He has admitted (letter, Jan. [30] 1825) that the 
rules and articles of War, or rather, the 61st article of War, 
is the only law on the subject. True, in the printed copy (p. 
10, pamphlet) he has foisted in " [added to that of July 6, 
1812.]" But this was merely to prevent that letter from con- 
tradicting another (Jan. 11, 1S26,) in which he gives up the 
article, and substitutes section 4, July 6, 1812. (Pamphlet 
p. 24.) I having shown, however, that that section has no- 
thing to do with the subject, [seep. 16. of this review) I here 
pass it by, and return to the 61 si article. 

Now I will put a case which shall illustrate the oath and 
the commission to the satisfaction even of persons the least ac- 
customed to consider questions of this kind. I will suppose 
General G. to be the Lieutenant-Colonel of the Corps of En- 
gineers with his present rank of major-general by brevet, from 
August 15, 1814. General Macomb is the actual Colonel of 
that Corps, with the brevet rank of major-general, Sept. 11, 
1814. His name would, therefore, be printed above that of 
General G — the older major-general, in the army, by nearly 
a month. Let us farther suppose that these officers are serv- 
ing together in that corps, and without admixture, or junction 
of other regiments or corps ; and that General G. should 
claim the command as being appointed over, or set over Ge- 

6 



48 Officers^ oath — Subordination. 

neral Macomb in the array. The latter would immediately 
refer to the 6 1st article, in which the case is expressly ex- 
cepted and provided for ; and reduce General G. to obedience 
within tlie corps. But add other troops, corps, or regimenti 
to the engineer corps. The exception would no longer exist, 
and it would be mutiny in General M. (I beg pardon for the 
supposition) to resist General G., who, as his date of rank, 
opposite to his name, shows, is appointed over, or set over Ge- 
neral M. in the army. — There is not an officer who will dis- 
pute this point. Indeed, similar cases almost daily occur. — 
But once more let it be supposed that / had arrived with the 
regiments or corps which joined the engineer corps ; or that 
I happened to be present with those generals, on duty, in any 
manner. It would be mutiny in either, or in both, to resist 
my orders ; being, by commission, or brevet, appointed oveVf 
or set over both, in the army. What ? — Shall the fact of my 
not belonging, as colonel, or lieutenant-colonel to some regi- 
ment or corps, place me on a worse footing than General G., 
who, according to the hypothesis, holds a commission in a 
corps or regiment, when I am by both of my commissions 
above all corps and regiments 7 — A case very like this occurred 
on a memorable occasion. All three of the individuals 
whom I shall name, belonged to regiments ; and in the Bri- 
tish army, whence we derive the institution of brevet-rank 
and our article of War for its government, all generals are 
such only by brevet. ^^Lieutenant-General Wellesley (Wel- 
lington) commenced the battle of Vimiera. Pending the ac- 
tion, his senior, Lieutenant-General Burrard, arrived; but 
from delicacy towards Wellington, who had made all the ar- 
rangements for the victory, would not interfere. Before all 
the advantages of the first success were secured, Lieutenant- 
General Dalrymple came up, and assumed, by the seniority of 
his brevet, the general command. — If the article of War did 
not restrict the rank of Burrard, and Dalrymple, who be- 
longed to particular regiments, how can my rank be restricted 
by an article, in every respect the same, when I have no regi- 
mental commission ? If there be any restriction in law, either 



Officers* oath — Subordination. 43 

express, or by necessary implication, 'on my rank, such as 
existed in the supposition above, (in the first case between 
Generals Macomb and Gaines) let it be produced. On the 
face of my commission there is no intimation of the sort. On 
the contrary, my rank, there, is express and absolute. — Such 
is the principle of the rules and articles of War ; of " the 
rules and discipline of War ;" and such is " the custom of 
War in like cases." For, if General Gaines were to resist my 
authority, and were brought to trial on that charge, a part of 
the oath of his court would be as follows : — " You will duly 
administer justice according to the provisions of ' an act esta- 
blishing rules and articles for the government of the armies 
of the U. S.' without partiality, favour, or affection, and if 
any doubt shall arise not explained by said articles, according 
to your conscience, the best of your understanding, and the cus- 
torn of fVarin like cases.^^ — Crosses Mil. Laws, p. 136. 

Could General G. before a court, on such a charge, show 
a case so clear as to exclude all doubt, — or rather, could he 
hope to excite a " doubt'^ in his favour ? 

The universal practice and " custom of War in like cases'* 
in the British army, may be inferred ; — 1 . From the idendity, 
in substance, between our articles of War relative to the ques- 
tion. 2. The Regulations of that army already quoted above 
(/?. 18.) 3. The case which occurred at Vimiera. 4. From 
the following passage in Samuel, on the British Army . 

" In other words, [he has just given a paraphrase of the 
British article] brevet-rank or command, for they are mutative 
terms, is declared to be effectual for every military purpose in 
the army at large, but of no avail in the regiment to which the 
officers holding it belong, unless it shall, in all, or in part, be 
mixed or united for a temporary purpose with some other 
corps." Page 612. 

So General Washington, in a letter (before quoted) on a 
question oi brevet-rank, expressly says : — " Military rank diwA 
eligibility to military command, are ideas which cannot be se- 
parated. Take away the latter, and the former becomes an 
unmeaning sound." — Rogeri Am. Biography, p. 323. — G*- 



44 Imputation Seventeenth. 

neral Washington spoke of a regimental officer, Brevet-Major 
Macpherson. Hence his measured expression " eligibility." 
Had he been giving his opinion on the brevet of an officer 
belonging to no particular regiment or " established corps," 
but equally above them all — he would have called his rank ab- 
solute. 

General Gaines speaks with great contempt of " English 
precedent," and of arguments " oi foreign origin and not 
applicable to our laws." But it happens, that the law in the 
present case, is the same both in our army, and that of Eng- 
land. One might imagine, that he had never been in a court 
of ordinary judicature, or seen a book of American reports. 
—I shall oppose to his illiterate sneer the highest authority — 
that of the man who was " the first in war, the first \w peace, 
and the first in the hearts of his countrymen.''^ — It is the same 
letter just quoted on brevet-rank. 

" The practice in other armies, in all cases not expressly 
provided for, is the best standard by which we can form our 
notions, and it would have obviated many difficulties if it had 
been better known, or more attended to. If particular officers 
are to depart from that, and set up new distinctions, as it suits 
their interests, or fancy, there is an end to all order and subor- 
dination."" 

I shall give under the second general head an uninterrupted 
current of American precedents, in support of the foregoing 
views, which cannot be resisted. With all of these General 
G. is fully acquainted, and to one of them at least was a 
party. He will do well to look to his oath rather than yield 
to blind passion and " Interest." As yet, I acknowledge he has 
not dared to commit the overt act, alluded to. But the in- 
ception of the crime is confessed. 

17. Towards the close of the letter, October 25, 1826, 
General G. pronounces a panegyric on the late Secretary of 
War ; ofiers a compliment to his successor ; — says, that the 
former " committed some errors, will not be denied -, that he 
was inadvertently drawn into these errors," &;c. A little lower 



Imputation Seventeenth. 45 

down he adds, — the Regulations " wrest from some of our 
first rate soldiers and patriots the pittance which the brevet- 
laws authorise ; — a pittance, that when added to the pay of a 
captain, would insure to him not more than one-third of the 
amount paid to the insidious adviser and compiler of lawless 
regulations." — The precious demagogue ! How he must 
have burned with impatience to despatch his harangue to all 
who had griefs to commingle with his own ! The mail to the 
camp near St. Louis seemed not swift enough for his re- 
venge ! Thanks to accident — or rather to an honourable 
soldier, the incendiary is exposed, and I will brand his every 
hand and cheek with the infamy they deserve ! 

It has been already seen, that I am not the author of No. 
1124, the only regulation in the book, on the question of 
brevet-pay and emoluments; that it was nearly contempora- 
neous with the act of 1818, which it expounds; that the ex- 
position excludes the act of 1812; that General Gaines knew 
those facts ; that both of us protested against the exposition 
in our own cases as early as 1820 — (in truth, we exchanged 
copies of our protests) and that I again (having called Colonel 
Towson to my aid) exerted myself, in 1825, to get the expo- 
sition altered — more particularly with a view to the brevet- 
Majors ! I will now add, that the files of the public ofiices, 
at Washington, will exhibit General Gaines's intense zeal in 
obtaining his own pay and emoluments ; and that, finally, he 
succeeded to the same extent that 1 succeeded ! On this point 
is it necessary for me to say more .'' Yes. A word as to Mr. 
Secretary Oalhoun. 

In the winter 1824 — 25, I revised two copies of the Regu- 
lations; carried some twenty pages at a time to the War 
Office ; discussed the general principles with the Secretary ; 
settled with him the alterations and additions to be made ; ex- 
ecuted his instructions, and, on the spot, filed, in the Depart- 
ment, one set of the pages so revised — keeping the other set 
to print from. It will be seen I was then fully aware of Ge- 
neral Gaines's envy, and habits of slanderous misrepresenta- 
tion. 



4^ Imputation Seventeenth. 

But Mr. Calhoun was induced by courtly attentions to 
favour my claims to brevet-pay and emoluments ! The in- 
sinuation is ingenious, and covers much ground. In respect 
to time, Sic. it was no doubt thought by the writer, to pos- 
sess all the merit of a most lucky apropos. But, although 
his letter was kept from my knowledge till accident detected 
a copy in Missouri, I will not believe that his sycophancy has 
availed him any thing — whditeyer prejudices his monstrous as- 
sertions against me may have excited. 

In 1821 — 22, General Gaines and myself, on an opinion of 
the Attorney-General, partially succeeded in our claims to 
brevet^pay and emoluments, against the decisions of Mr. Cal- 
houn — who, to the last, was opposed to those claims. Mr. 
C. by a letter dated, Jan. 21, 1822, Document [88] immedi- 
ately laid the whole matter before the military committee of 
the H. R. It was, I think, the April following before I had 
seen, or heard of that document. I was then in Philadelphia. 
Regarding Mr. C's letter as a protest against the opinion of 
the Attorney-General, I immediately addressed a spirited, but 
respectful letter of complaint to the Secretary, and begged 
that it might be transmitted to the same committee. This 
he refused to do, on official considerations ; and sent back 
my paper ; intimating, that I could send it to the committee, 
unofficially, if / thought proper. Accordingly I enclosed it 
to a friend in Congress, who submitted it to some, or to all 
the gentlemen of that committee. The paper is still within 
niy power, and judging from the remarks endorsed upon it, 
within the committee-room, was not wholly without effect. 
Let it be remembered that General Gaines was equally inter- 
ested in this matter with myself. Did Mr. Calhoun favour 
the claims of either ? Or dare General G. plead ignorance 
of the public document cited f 

I never discussed personally, or through a friend, either 
with the late President, or the late Secretary of War, either 
my claim to brevet-pay and emoluments, or my claim to 
brevet-rank, excepting the latter question with Mr. Secretary 
Calhoun in the War Office, on one of the three last days of his 



Imputation Seventeenth. 47 

administration. Those claims were always advanced in writ- 
ten arguments, now on file in the Department — never in pri- 
vate interviews at private houses ! I ask that my letters may 
be examined. If one word of homage, or even a compliment, 
to a man in power, or to one likely to be in power, be found, 
let it be produced to my disgrace. No ! I have ever scorned, 
and I shall ever scorn the agency of such means. My letters 
will be found tQ breathe the spirit of a freeman — who, though 
cheerfully yielding himself to the code made for the govern- 
ment of the army, would sooner suffer death than sacrifice to 
Power one particle of his dignity as a man — no matter by 
whom that Power may be administered. I speak advisedly. 
The code is before me. 

Turn now to any one of my slanderer's letters which have 
been noticed — particularly to that of January [30], 1825. 
This is his chef d^muvre. He employed nearly four weeks 
upon it — in reply too, to an argument, rigorously techni- 
cal ; without one flower of abuse ; without vanity or self- 
complacency ; without one syllable of sycophancy. He 
had, however, but recently declined a challenge^ and hence 
the desperation o( his manner. 

The address of his letter is, itself, a capital stroke of syco- 
phancy. I had had the simplicity to direct my argument 
through the ordinary official channel — the Adjutant-General. 
General Gaines overleaped that officer, and as a mark of his 
particular respect and confidence, addressed himself at once to 
the General-in-Chief. I shall cull some (ew specimens of a 
similar character from the body of the letter, not omitting the 
evidences of his vanity and egotism. 

Looking with eagerness to the moment of publication, 
which has since been seized, he woos all the world with the 
most assiduous courtesies. Congress is that " honourable 
and enlightened body;" he laments over several distinguished 
officers named, who were killed in battle — only as a compli- 
ment to their living relations ; — compliments the present Cap- 
tains of the army ; — the Senate is, " that august body ;" 
offers his homage (Jan. 1825) to " the able head of the De- 



48 Imputation Seventeenth. 

partment of War ;" the three living ex-presidents, and Mr. 
Monroe, (Jan. 1825) "just and enlightened men ;" Mr. Madi- 
son was a " venerable chief magistrate ;' conferred on the 
writer a brevet " unsolicited ;" the people's " representatives 
promptly sanctioned the act, by their spontaneous vote of ap- 
probation and thanks ;" " heartfelt gratitude to my country;" 
compliments General Brown — the sycophant never believed 
his brevet equal to the " complete rank" of General B. ; com- 
pliments the whole country — else-where, " arbitrary power ; 
here law governs;" — " takes occasion to say," he never solici- 
ted rank or promotion, he. ; takes occasion also to tell of his 
"long series of the most trying and important services f^ o{ 
\\i% *^ long habitual attention to duty f^ narrowly escaped an 
opportunity of great distinction, when a captain, in the pur- 
suit of certain Creek Indians, " who saved themselves by a 
precipitate retreat through the cane-brakes of Alabama;" he 
is " honoured with a sword to protect and defend my country 
and her laws ; when T neglect, or forget my duty, then may 
my country forget me !" " /had saved the gallant remnant 
of your division, General, [General Brown] after your 
wounds had compelled you to leave it, and in doing this, / 
led it to a victory in which the enemy acknowledged a 
greater loss than at any other place on land during the war, 
except at JVeiv Orleans."*^ (The reasons of even this excep- 
tion immediately follow.) " All who know Jackson, [mean- 
ing General Jackson] know that the honour of a soldier, or 
citizen, could never be otherwise than safe in his hands. He 
had the wisdom and virtue and firmness, to do right, and to 
abstain from doing wrong." (Let the precise time at which 
this was said be remembered ; Jan. 1 825 !) Then follow 
more compliments to captains, including " lieutenants ;" — the 
writer modest at dinner parties ; " in common with every 
patriot," no slave to etiquette imported from Europe ; compli- 
ments every body — has " the happiness to live in a Republic 
where every citizen is politically and socially equal ;" com- 
pliments " officers of all grades, including cadets ;" has great 
contempt for " a Knight of the Garter," or of the " Golden 



Imputation 1st, recurred to. 49 

fleece;" also, for "English law and English precedent;" 
the " course" of the Secretary of War (Jan. 1825) " digni- 
fied and impartial" — with homilies, on the moral duties, with- 
out number, and which defy all quotation ! 

Once more T beg it may be remembered that this character 
of Geineral Gaines's reply was pointedly exposed in my re- 
joinder, Feb. 5, 1325, and in which I also distinctly asserted, 
on internal evidence, that the reply was intended for publica- 
tion. I did not, however, predict that he would, in publish- 
ing, suppress my rejoinder ! 

Under the first specific head above, (p. 11,) it will be seen 
that I quoted a note from Mr. Secretary Calhoun, to show, 
that General Gaines assisted at the reading of the manuscript 
copy of the Regulations in 1820, at the time the projet re- 
ceived the sanction of the Secretary ; and, also, that para- 
graphs two and three, third article, did not pass sub silentio, 
but were actually discussed and amended. It will also be 
seen that I there quoted a passage from General Gaines's let- 
ter, Jan. [30], 1825, in which he says — in the year 1821, " a 
printed copy of the Regulations for the j^/-5^ time exhibited to 
my view the ambiguous paragraphs, embracing the before- 
mentioned effort of General Scott to contravene the law, and 
thereby to place himself above me; and in a similar manner 
to injure the interests of most other officers of the army, 
having no brevets ; or being brevetted at a period subsequent 
to their lineal juniors." 

In fixing this distinct falsehood upon General G. I did not 
quote the words of the paragraphs, to show that they were 
as clear, and as express — not merely as / could render them ; 
but as clear as they could be rendered by Mr. Secretary 
Calhoun, General G. and myself I will now venture to 
assert, that they are as free from ambiguity as any two para- 
graphs of equal length in the language. A simple inspection 
will establish the correctness of this assertion. I had not, 
however, when engaged in that part of this review, GeneraJ 
G's letter so recently (I will add, accidentally) received, or 

7 



59 Imputation 1st, recurred to-. 

I should have abridged, much, what is there given. Here are 
his own admissions. 

" It is known that I, in the year 1 820, assisted in the ex- 
amination and correction of the compiler's manuscript copy of 
a part of the general Regulations," Uc. [He then proceeds 
to praise some of them, which, however, he says had no ori- 
ginal merit ; condemns parts of others, and even takes some 
credit to himself for the humble alterations which he suggest- 
ed.] " These [the errors] were strikingly exhibited in seve- 
ral articles ; but in none to an extent so glaringly in opposi- 
tion to law as in the third article, as I have hitherto shown. 
I contributed, with the concurrence of the Secretary of War, 
to effect some alterations and corrections ; but many articles 
were left unaltered and imperfect. These remarks apply ex- 
clusively to the first sixty-four articles," Stc. General* 
Gaines to the Secretary of War, October 25, 1826. 

In the foregoing quotations I have not omitted a word 
which can in the slightest degree explain away the palpable 
contradiction. In truth. General G. had got both his con- 
science and memory so involved in the controversy ; had 
written at different times such volumes on the subject, that 
he, in October, 1826, did not remember what, to blast my 
reputation, he had so broadly asserted in Jan. 1825. And so 
it ever is. Providence for the safety of the innocent, con- 
founds the memories of the guilty. 

He begins his admissions : — " It is known that I, in 1820/* 
&c. How was this known .'' Certainly not by his letter, 
Jan. [30], 1825. Why, when he obtained (about Jan. 11, 
1826) a copy of my suppressed letter or rejoinder, he then 
saw, that I had disclosed, in argument, the fact of his having 
assisted in fixing the provisions of the said third article. It 
is probable, however, that he did not even then remember, 
and that it has not since occurred to him, that he, in January, 
1825, had denied having seen that article, or rather, two of its 
paragraphs, in manuscript : — for, as the purpose of the denial 
had had, at the time, (in part, at least) the effect intended, it 
was no longer worth being remembered. Again ; he saw 



Imputation lit, recurred to. il 

that I had not, in my suppressed letter, specifically charged 
him with the falsehood in question. He may therefore have 
thought, as I had partially overlooked it once, I might do so 
again, even if, by remote accident a copy of his pamphlet, or 
of his incendiary letter, Oct. 25, 1826, should ever fall into 
my hands. 

But why did I not specifically charge him with the 
falsehood in my rejoinder, or suppressed letter, February 6, 
1825 .'* I will frankly admit that, in the hurry of the moment, 
the extent of the denial was overlooked. A copy of his re- 
ply, Jan. [30] 1825, in which it occurs, was received by me on 
the evening of the 3d February, or on the following morning. 
It was in 45 manuscript pages. I was at the same time en- 
gaged (at Washington) in revising the Regulations, and in 
correcting the proof-sheets of both the book of Tactics, and 
the book of Regulations — which labours I was required by 
the Department to complete without delay. I could, there- 
fore, only hastily seize upon some of tlie principal points sug- 
gested by the reply — particularly such as bore on the question 
of rank ; and I handed in the rejoinder, the morning on 
which it bears date — Februarys, 1825. It was under those 
circumstances of haste, that I enclosed, with the rejoinder, a 
copy of my letter of complaint to General Gaines, dated July 
25, 1824, ah-eady noticed — simply to show, in the way of ar- 
gument, that General G.'s objections to the third article, 
were, at least subsequent to the year 1820, when, in candour, 
as in strict military duty, they ought to have been stated — if, 
in truth, there ever had been the slightest force in them. My 
letter of July 25, 1824, contained this paragraph : — 

" 1. Because, when the book received the preliminary 
sanction of the Secretary of War, you [General Gaines] were 
officially present, and (on repeated invitation) suggested alte- 
rations in the article in question, all of which (two in number) 
were promptly and cheerfully adopted by me." 

1 added two other reasons to show why I was still loath to 
believe that he (General G.) had charged me with unfairness 
in respect to the third article. In his blustering reply, dated 



69 Imputation 4th, resurred to. 

July 26, 1824, which led to the challenge, he says of the 
three points : — " these reasons are emphatically your own." 
This may, or may not have been intended as a specific denial 
of the truth of the paragraph quoted ; but if not, there is no 
specific denial in the reply. 

One remark more. He says (Oct. 25, 1826) only about 
64 articles of the Regulations were submitted for the prelimi- 
nary sanction in 1820, and mentions the third as one of them. 
True, — but those 64 articles contain all the points to which he 
has since objected, except the paragraph at present numbered, 
1124, and the point relative to the exclusion of the act, July 
6, 1812, from the appendix of the edition, 1825 ; — and these 
exceptions have already been fully met and settled for ever. 

In order that this review may contain within itself every 
thing within my reach, material to the points discussed, I sub- 
join a copy of Major Worth's certificate or note, mentioned 
above, (p. 21) and which has since been received. 

" West-Point, Jan. 9, 1825. 
" General : I have the honour to state in reply to your 
letter of the 3d instant, that during the month of September, 
1814, being delayed by your wounds at Utica, you were 
joined at that place by General Gaines, and thence travelled 
in company to some point on the North river — that during 
the journey, in matters of etiquette, and particularly at a 
public dinner given by the citizens of Albany to General G. 
and yourself. General G. yielded in the most punctilious man- 
ner, what 1 deemed to be point of precedence, and a conse- 
quent admission of seniorit}'. 

" The impression is strongly upon my mind that the Ge- 
neral once observed to you in my hearing, " the fortune of 
war has given you the rank" ; — it was, 1 think, at Utica, and 
during a very unreserved conversation between you. 

" Considering the question of rank as settled by the dates 
of your respective brevets, it is not probable I should have 
remarked the circumstances above referred to, other than as 
evidences of a lofty and magnanimous spirit exhibited by 



Imputation 12th, recurred to. 53 

General Gaines towards one, who had run with himself the 
course of glory with theretofore but an imperceptible differ- 
ence, — still a prior date of rank. 

" Possibly I may have misinterpreted the language and 
manner of General Gaines ; yet such was the decided impres- 
sion upon my mind ; and, I think, the subject was one of fre- 
quent conversation between Major Belton and myself, at that 
time aides-de-camp to the respective generals. 

" ] have, he. &;c. 

" W. J. WORTH. 

" To Major-General Scott, U. S. Army, &;c." 

On receiving the manuscript copy of General G.'s letter to 
the Department of Jan. 1 1, 1826, (but which is not certified) 
I find a postscriptum not attached to the printed copy (pam- 
phlet p. 25.) It is in these words : — 

" P. S. I forwarded to the adjutant-general's ofiice, for 
the information of the Department of War and General-in- 
Chief, a letter, of which the foregoing is a copy — but having 
since understood that it had not been submitted to you, I have 
deemed it proper to send this to you." (Signed) " E. P. G." 
and addressed to " the Honourable James Barber, Secretary 
of War." 

On this I beg leave to offer the following remarks : — 1st. 
I have been mistaken in fixing above, the date at which Gene- 
ral G. obtained a copy of my suppressed letter, to which his 
of January 1 1, 1S26, is a reply. He must have received it 
some time before that date, for, by the " P. S." it seems the 
reply had been originally '• forwarded." It is probable, there- 
fore, that the copy of my letter had been received through 
the mail, and not by personal solicitation whilst he was at 
Washington, in December and January 1825-26. — 2d. It is, 
also, probable that General G. " after being favoured with 
your views upon the subject [of brevet-rank] in conversation 
at your house, in January," 1826, (which determined him "to 
await in silent and confiding expectation the final decision of 
the President," letter, Oct. 25, 1826,) then made the disco- 
very, that his infamous communication to which the " P. S.* 



64 Imputations — Conclusion. 

is added, had not reached the Department, and that a copy 
might be useful in confirming the " views" with which he had 
been « favoured."— 3d. That when he, General G., took 
upon himself the office of public informer (see above, jP. 31) 
be was resolved tiiat all who had the power to cause me to be 
arrested and cashiered, for sending the challenge, should 
know, before the two years were out, that he was a ready in- 
strument for that service. I am happy to have it in my power 
to add, — that his baseness in this particular at least, must have 
been seen and felt, and, therefore, rejected. 

Let it not be concluded that the mere struggle for a place a 
little higher in command, has converted a friend into a deadly 
enemy. We have seen that the point of rank was, down to 
a certain time, yielded without discussion, and apparently 
without regret. — General G. came out of the late war with 
some applause ; and in the common fervour of the country, 
was ready to do justice to a brother soldier. Since that pe- 
riod he has had the misfortune not even to remain stationar}'. 
Whilst all who were around, or below him (thanks to the sti- 
mulus of the Military Academy) have made advances in pro- 
fessional science and usefulness, he alone, has positively re- 
ceded. In the Seminole campaign he acquired any thing but 
glofy — or rather, if the rumours of that day are to be cre- 
dited, he narrowly escaped arrest and punishment at the hands 
of his successor : and, on a more recent occasion, which arose 
in the same quarter, his conduct drew from the President of 
the United States, a public reprimand. This positive — not to 
speak of relative retrogradation, has disposed General G.'s 
mind to envy, and goaded him to revenge. Those just be- 
low and above him in rank, are the chosen objects of his ma- 
levolence. Hence his letter already noticed, against General 
Jesup ; and hence also, the volumes of abuse, in print and in 
manuscript, which he has privately circulated to my injury. 

The coincidences of his acts of hostility against me, with 
certain positions which I have occupied (it may be, more from 
accident, than merit) are strikingly illustrative of the charac- 
ter of this controversy. — (If there be egotism in the statement, 
it is defensive.) 



Imputations — Conclusion. Odi 

In 1821, 1 published, under '^ authorhy,^^ General Regu- 
lations for the Army ; or. Military Institutes. The book was 
received with approbration, and I lost, without suspecting it, 
for some time, the friendship of General G. In 1824, I was 
called — as he takes care to tell, " from a distant command,'* 
to give, singly, a second edition of that book, and also to 
preside over a Board of Officers charged with the revision of 
the Infantry Tactics. It was, in passing through New-York 
to West-Point, on that duty, that I received from him the 
blustering letter proclaiming open hostility, and which led to 
the challenge. — In the winter, 1824-25, being engaged in 
printing, under the view of the Executive and of Congress, the 
two works mentioned. General G. gave (as if to recover his 
level in his own mind, at least) a character of extraordinary 
personal violence to his letter of Jan. [30] 1825. In the au- 
tumn of 1826, 1 was again called to preside, at Washington, 
over a board of militia generals and army officers, organized 
to report systems of tactics for the several arms of the militia, 
and also, a plan of organization for that branch of the na- 
tional defence. This was, it seems, another outrage to his 
vanity ; — bursting with envy and rage, he employed the very 
moments the board was in session, to write the most foul and 
deadly of all his productions (letter to the Department, Oct. 
25, 1826) and immediately despatched, at least a copy, to stir 
up to mutiny against me, the captains and brevet-majors of 
the army. Is there aught of exaggeration in this narrative ? 
If there be, I beg that it may be struck out : more than suffi- 
cient will still remain to establish every position I have ad- 
vanced. 

It is i-emarked by Hume, that after Harvey had demonstrated 
his theory of the circulation of the blood, not a physician in 
Europe who had passed his fortieth year, acknowledged the 
great truth, or conformed to it his practice. And so in the mili- 
tary profession. There are always minds, which, having lain 
loo long in fallow, reject every attempt at improvement as an 
outrage upon their rigidity : the next step is, revenge — by oppo- 
sition and traducement. Gribeauval, who reduced the service 



56 Imputations — Conclusion. 

of artillery and ordnance from chaos to perfect order and effi- 
ciency, was persecuted through life by the zealots of ancient 
error and abuse ; and Guibert, who gave to the grand con- 
ceptions of Frederick a developement and practical detail 
which were soon to carry the French armies triumphantly 
through the battles of liberty, died of a broken heart under 
the shafts of envy. 

" Mais tel est le sort commun des hommes celebres, &z; des 
militaires illustres : places entre la renommee &; la colomnie, 
entre les ennemis de leur pays, St les ennemis de leur gloire, 
ils ont egalement a redouter les traits de I'envie, et les armes 
des combattans. Vivans, I'injustice les tourmente ; morts, la 
gloire les couronne." {Notice sur les ouvrages de Guiberty 
Vol. 1. p. ii.) 

General Gaines stands, pre-eminent, over a small school of 
bigots in our army ; and acknowledging, as I most cheerfully 
do, the immense distance which separates the brilliant labours 
of Guibert from my very humble endeavours in one of his 
walks, it will, nevertheless, not be the fault of my enemies, if 
I do not closely resemble him in the final scene. 

It has been remarked by more than one individual of keen 
observation, that General Gaines on the subject of this unfor- 
tunate controversy, had the appearance of being deranged ; — 
that the question of rank had become the hallucination of his 
mind. Perhaps, it may then be asked, why the severity with 
which 1 have treated his abberrations ? What ! If a madman 
flies at my throat and attempts my life, shall I not break his 
hold, and chastise him into intellectual sobriety ? 

I have now redeemed my pledge as to the accusations pub- 
lished against me. What more may remain in secret deposit, 
or in private circulation, originating in the same quarter, I 
know nor care not. General Gaines can no longer excite 
my anger or indignation. Far different feelings now possess 
me on his subject. Let him then 



-" his several way 



Pursue, as inclination or sad choice 

Leads him — perplex 'd where he may likeliest find 

Truce to his restless thoughts." 



Origin and history of brevets. 57 

//. Of the rights of brevet-rank in respect to commands. 

I have already stated above, pp. 18, 42, that the institution 
of brevet-rank, together with the only rule for its government, 
or limitation, were borrowed by us from the mother country 
as early as September 20, 1776. (.S'ee Cross^ Mil. Laws, 
p. 29, Section XIII, Article 24, and again the same book, 
p. 135, Article 61.) Let these two articles be compared with 
each other, and also with Article 1, Section XV, of the British 
Code, and the identity of the whole three, in every substan- 
tial particular, will be established. 

But the same principle was abstracted and adopted, by the 
old Congress, as early as June 30, 1775. {Cross^ Mil. Laws, 
p. 272, Article XXXir.) This abstract gives a perfectly 
simple exposition of our existing Article 61, (act, 1806) and 
which exposition is in exact accordance with the views quoted 
above, p. 18, (from Samuel and General Washington) and 
with my arguments founded thereon. 

The word brevet is French, derived from brevetum, low 
Latin, of breve, short {Todd^s Johnson, 4to. edition). As 
used in the French language it obviously is sometimes to be 
translated commission, sometimes letters-patent. [Diction- 
naire de V Academic.) 

In the British army, the noun brevet was borrowed more 
than a century ago, and used adjectively to make brevet-rank, 
signifying rank acquired by length of service, gallant ac- 
tions, or other meritorious conduct, in contradistinction to 
regimental rank purchased with money ; for in that army, 
regimental commissions may be bought from a cornetcy or 
ensigncy, up to a Lieutenant-Colonelcy. At this point pur- 
chases cease, and the higher grades, as Colonel, Major-gene- 
ral, (there are no brigadiers; Major-generals command bri- 
gades) Lieutenant-general, General, are, all conferred solely 
by brevet. But brevets are also conferred on grades inferior 
to that of Lieutenant-colonel, and on brevets as well as on re- 
gimental commissions ; either in favour of individuals, on 

8 



58 Origin and history of brevets. 

special inducements, as in our service ; or, generally, in favour 
of all officers who may have served a given time in the same 
rank, whether by brevet or otherwise — which again corres- 
ponds with our practice in respect to regimental rank. Thus 
at intervals of four, six, eight, or ten years, (according to the 
general activity of the army) the king publishes in the official 
gazette (in the nature of an order) what is called a " Brevet ;" 
conferring at once on every officer from Captain up to Lieu- 
tenant-general, who has held the same brevet or regimental 
commission the given number of years, one additional grade 
of rank in the army. This grade, or rank, is then carried to 
the next army list, as army, or brevet-rank. And hence, from 
the brevity of this process, compared with the numerous forms, 
certificates, and agencies, with which the sale and purchase 
of regimental commissions are burdened, the term brevet-rank 
in accordance with the primitive word brevetum. 

(Note. I transmitted to the Department with my letter of 
Jan. 17, 1826, an "Albion" of July 16, 1825, containing, at 
p. 34, the general "Brevet" of 1825; also a copy of the 
British Annual army list, for the same year. The two, com- 
pared together, will support what is here said of brevets. 
The forms, &tc. for the sale and purchase of commissions, may 
be seen in any copy of the British general regulations and 
orders for the army.) 

In the British army then, the regular promotion is by 
brevet ; for, although the acquisition of rank may be quick- 
ened, up to tiie grade of Lieutenant-Colonel, by purchase, 
this is but accidental, not regular promotion. For example ; 
the Major of a regiment wishes to sell out, or he dies ; the 
senior captain has only the right to pay the difference, in 
value, between his captaincy and the majority. If he have 
not the mone}', the right passes to the other captains in the 
order of seniority. 

But rank acquired in that army, by brevet, is, as I have 
shown above, p. 43, as effective, as regimental rank purchased 
with money — except only within the officer's own regiment ; 
the brevity of the process not at all affecting the validity of 
the acquisition. 



Origin and history of brevets. 69 

In our revolutionary war, there were several members of 
Congress, and many officers (General Washington himself 
^mong the number) who had actually served with the British 
army, and who, therefore, perfectly understood all the prin- 
ciples and usages of that service. Hence the institution of 
brevet-rank, and the rule for its government, were entirely 
and literally borrowed from the mother country. The insti- 
tution was found a powerful incentive to the exertion of every 
faculty in that arduous struggle, and the cheap and appropri- 
ate reward of the success of those exertions. The Journals of 
that period will show, that the rank was liberally conferred 
on regimental officers, and also on brigadiers without regi- 
ments^ not only as a reward for special acts of merit; but 
for length of service (combined with implied merit) precisely 
on the principles above explained. See a general *' Brevet," 
Journals of the old Congress, Sept. 30, 1783 j and for special 
brevets, the same journals, ^asstm. 

To show that the rank so conferred was not deemed lightly 
of, I quote the following : — 

" Resolved, that no brevets be, for the future, granted, ex- 
cept to officers in the line, [not to persons in civil life] or, in 
incases of very eminent services. ^^ Journals, Nov. 24, 1778. 

" Resolved, that no brevet commission be granted to any 
officer, except with the consent of nine States." Journals, 
Feb. 20, 1779. (Congress voted by States, and seven votes 
constituted a valid majority in other cases.) 

Such then was the institution borrowed from the parent 
country by the patres conscripti — the statesmen and soldiers 
of our independence — at the very moment too, of disruption — 
of awful conflict with that country. Ought they to have been 
told, that the thing was of " foreign origin ;" — that the prin- 
ciples and usages for its government, were objectionable, be- 
cause founded on " English law and English precedent .?" 
Upon precisely the same grounds they might have rejected 
the principle of representation in government ; the trial by 
jury ; the writ oi habeas corpus, and other such laws and pre- 
cedents ! 



60 Commentary on 61s< Article. 

The last brevet conferred by the old Congress, was, in 
the case of Lieutenant- Colonel Harmar, July 31, 1787, who 
received at once two grades, constituting him a Brigadier- 
general, and in which commission, as Marshall tells us in the 
Life of Washington, Harmar made the campaign against the 
Indians in 1791. [See below, the case of Butler and Harmar.) 

By the act, July, 6, 1812, (the commencement of our 
second war) authority was given to the President alone, to 
confer brevets for gallant actions, or meritorious conduct, 
or for ten years' services in any one grade. So much of this 
act as relates to the inducements to the rank, remains ; but by 
the subsequent law, April 16, 1818, the advice and consent 
of the Senate are rendered necessary. Brevets, however, 
conferred under the former law, are, as valid, as brevets con- 
ferred under the second law. All are, equally, founded on 
express law ; all have the same forms, and the same seal, 
with the same expressed rights and obligations as in the case 
of all other commissions.* (See, above, p. 40.) With these 
high attributes, can any thing short of an express, pre-existing 
law, impair the validity of a brevet? If such law exist, let it 
be produced. 

General G. sometimes, as we have seen above, (pp. 15, 38) 
cites the Gist article, the origin and history of which, ^1 have 
just given, " as the only law known to the army of the United 
States embracing the principles upon which brevet-rank and 
brevet command [added to that of July 6, 1812] depend." 
But I have shown that the words in brackets are not in the 
original ; but have been long since inserted in the pamphlet 
copy of his letter. In a subsequent communication, Jan. 11, 
1826, he, for the first time, appends the act 1812, to the 
article of War, act, 1806. But in the last mentioned letter, 
he tivice gives up the article of War as a restriction on general 
officers^ brevets, and rests that restriction on the act so ap- 
pended ; but here, again, he fails ; for, 1 have demonstrated 

* The form of all military commissions has remained very much the 
same since the original was reported to Congress, Dec. 1 1, 1778. 



Commentary on 6 1st Article. 61 

that this act also must be abandoned. There is then no lai/f 
restricting my brevet, for example ; for either as brigadier, or 
as Major-general, I belong to no particular regiment or 
corps, but am, by rank, equally above all regiments and corps 
in our service. For the meaning of the word " Corps," in 
this connexion, and, indeed, throughout the articles of War, 
see above, p. 17, he. ; the 6Gth article, act, 1806, and, also, 
Article XXXIV, Resolution of Congress, June, 30, 1775. 

Let us admit, however, for a moment, against all authority, 
and against all just construction, that brigades and divisions, 
mere temporary corps (even when formed for a campaign) 
are " corps" in respect to general officers' brevets, — in the 
same sense in which, under the 61st article of War, a regi- 
ment, or the corps of engineers, is an " established corps" in 
respect to the brevets of the lower officers serving therein. — 
We have, at present, a number of troops which, if so tempo- 
rarily organized, would form more than four brigades, and, 
consequently, more than two divisions. I will suppose Ge- 
neral G. to be at the head of one of these brigades or divi- 
sions — no matter which, and that I am at the head of another. 
Again, that we are brought into the same camp, or into the 
same geographical district or department; and one or other 
of us must command. Well ; if the two bodies of troops are 
corps, by assimilation, as two regiments are " different corps" 
under the article of War ; then the precise case is provided 
for in that article — command shall be " according to the 
ranks given them [the two generals] in their brevets." But 
shall the union of the two temporary corps be considered as 
forming one " detachment" ? I have again only to quote 
the same words from the article : the case is again expressly 
provided for. 

Now let the case alluded to above, p. 27" be considered. 
Col. Fenwick of the 4th artillery was serving with a part, or 
the whole of his regiment. When troops join, or act in con- 
cert, there can be but one head. Fenwick was the older offi- 
cer by brevet, and Clinch the older regimental colonel. I be- 
lieve Fenwick assumed the command, as a matter of course. 



W Commentary on 61st Article. 

General Gaines, though the case was expressly provided for 
by the article of War, attacked the General Regulations, as I 
have intimated, and put Clinch in the command ! On the case 
being referred to Washington, the decision was at once over- 
ruled, and Fen wick reinstated. — I saw the papers soon after 
the case occurred, but do not accurately recollect when. 

I will here quote the entire article of War so often referred 
to, in order to superadd a few remarks. 

"Art. 61. Officers having brevets [or commissions of a 
prior date to those of the regiment in which they serve] may 
take place on courts-martial, and on detachments, when com- 
posed of different corps, according to the ranks given them in 
their brevets, [or dates of their former commissions] but in 
the regiment troop, or company, to which such officers be- 
long, they shall do duty, and take rank, both on courts-mar- 
tial and on detachments, which shall be composed only of 
their own corps, according to the commissions by which they 
are mustered in the said corps." — jlct, 1806. 

1st. If the article be read, omitting the words enclosed in 
brackets, its application to brevets, strictly speaking, will be 
more distinctly perceived. 

2d. The words enclosed in brackets relate to cases which 
frequently occur in the British army, and may occur in ours. 
Thus, Captain A. obtains with the proper sanction, a transfer 
from the 1st to the 2d regiment. No. 1299 of our regula- 
tions (and there is a similar provision in the British army) 
says : — " Nor shall an officer be transferred into a regiment 
to the prejudice of the rank of any officer thereof." Captain 
A. may, therefore, have to lose, in the 2d (say) a year's 
rank. He would, in this case, however, have his former rank 
as captain, placed opposite to his name (in the army list, or re- 
gister) in the nature of brevet-rank, and be " mustered in the 
corps" to which he is transferred, as captain, with the date of 
his transfer. This is what is meant by a " commission of a 
prior date." (See Captain Baker's and Lieutenant Mait- 
land's names, army register, pp. 10, 12 — 1827.) This expo- 
sition which, when thus presented, seems almost self-evident, 



Commentary on 61 sf Article. 63 

was first given by Major-General Macomb. It shows how- 
ever, that many parts of our military code, can only be un- 
derstood by a thorough acquaintance with the j)ractice and 
usages of that army from which we borrowed it. That " prac- 
tice," in the language of General Washington, " would have 
obviated many difficulties if it had been better known^ or more 
attended to." 

3d. It is perfectly obvious from the whole structure of the 
article, that regimental* officers' brevets, only, are restricted, 
and that too, only within the regiment, or " permanently or- 
ganized corps," (General Washington's words;) for, the 
moment the brevet comes in contact with officers of other re- 
giments, it takes effect even over senior regimental rank of the 
same corps. — This daily happens, both in the American and 
British armies. 

4th. Troops and companies are mentioned and included in 
the final general word " corps" ; because, in the British ar- 
my, as well as in ours, there have been independent troops and 
companies not attached to regiments — the " troop or com- 
pany" being within itself, a " permanently organized corps.'* 
It was, therefore, necessary, on the principles of the article, 
to restrict brevet-rank within such troops and companies. — 
Brigades, divisions, and larger bodies, are not mentioned or 
anywise included* — either in the 61st, or any'other article of 
War. For " independent companies" (of rangers, for ex- 
ample,) see revised U. S. L. Vol. 4, pp. 506, 614 ; alsOy 
Cross* Mil. Laws, p. 273, art. xxxix, andp. 276, art. Ixiii, 



* Rule of construction. " 2. A statute which treats of things or per- 
sons of an inferior rank, cannot by any general words, be extended to those 
of a superior. So a statute, treating of " deans, prebendaries, parsons, 
vicars, and others having spiritual promotion," is held not to extend to bi- 
shops, though they have spiritual promotion ; — deans being the highest per- 
sons named (a) and bishops being of a still higher order." Blackstone'f 
Com. Vol. l,;j. 87. 

(a) " This construction must be presumed to be most conformable to the 
intentions of the legislature." Christian. — The 61st article is, moreover, it 
will be recollected, in the nature cf a restraining statute. 

--'^»^i-p% o.a^... CO,,., .„,, ^^ ^^^^ ^^^ 



64 Commentary on 62c? Article. 

5th. 1 am, as brigadier, or as major-general, not " mus- 
tered in the said corps,^^ nor in any corps. 

And here I might, before any court of the union, safely rest 
my case — either on the 61st article, once solely relied upon 
by General Gaines, or on the 4th section, act July 6, 1812, 
which he has since so adroitly appended to that provision of 
law. But as he has twice obscurely referred to the 62d arti- 
cle, I will give him the benefit of the reference. He says : — 

" To conclude, it cannot be denied that the 7th paragraph 
of the second article, and the 2d and od paragraphs of the 
third article of the General Regulations, compiled by Gene- 
ral Scott, are positively repugnant to law, particularly to the 
61st and 62d articles of the act of 1806, to which I have be- 
fore referred." And that reference, in a previous part of his 
same letter, Jan. [30] 1825, is in these words : — 

" The 6 1 st and 62d articles of War embrace the very foun- 
dation of the primary principles of brevet-rank in our service. 
The operation of this principle cannot be denied to extend, 
according to the letter and spirit of the law under our present 
organization, to all regimental officers having brevets, even to 
the rank of major-general. Regiments are the proper corps 
of such ofiicers. Thus does General Brady's brevet, as bri- 
gadier, and General Atkinson's fornier commission of briga- 
dier, (recognised equally by the 61st article of War) entitle 
them to brevet-pay when on duty, and having a command ac- 
cording to their brevet-rank ; whilst the proper corps of the 
former is the 2d infantry, and that of the latter the 6th in- 
fantry." Pamphlet, p. 11. 

To every proposition contained in the last extract (omitting 
the letters and figures, " and 62d," I most cheerfully sub- 
scribe. The paragraph gives precisely my argument. But 
it will be remembered, that / belong to no corps. In Gene- 
ral G.'s other letters which have, by accident, fallen under 
my observation, 1 cannot discover the slightest allusion to the 
62d article, and here I have quoted every syllable in the let- 
ter, Jan. [30] 1825, on the subject. The two allusions, it 



Commentary on 62d Article. 

must be confessed, furnish a fine illustration of the " palpable 
obscure." 

But, as I know not what effect his obscurities have produced, 
or may produce, on my rights, I shall at once bring into 
light and activity the 62d article, and turn it against my op- 
ponent. 

" Art. 62. If upon marches, guards, or in quarters, differ- 
ent corps of the army shall happen to join, or do duty to- 
gether, the officer highest in rank of the line of the army, 
marine corps, or militia, by commission, there, on duty, or in 
quarters, shall command the whole, and give orders for what 
is needful to the service, unless otherwise specially directed 
by the President of the U. S. according to the nature of the 
case." Jet, 1806. 

This ahicle, also, was borrowed, Sept. 20, 1776. (Cros$^ 
Mil. Laws, p. 29. Articles 24, 25.) It contains the substance 
of the British 2d and 3d articles, section xv., and also the 
substance of the regulation, quoted above, p. 18. {Note. 
The miserable argument, entitled " Brief Examination," &;c. 
asserts, that " the provisions of this article [were, in 1806,] 
new and important" ! This General Gaines reprints (in his 
Cincinnati pamphlet, p. 22) and says, it " is from the pen of 
an able and experienced officer whose knowledge of military 
law is believed to be equalled by few men, and surpassed by 
none in America" ! He adds, that he General G. " on read- 
ing it, pronounced it to be the clearest exposition he had ever 
seen on the subject" ! 1 But General G.'s puffs, like his cen- 
sures, have become a little worn of late. I shall have occa- 
sion to recur to this clear " exposition." — At present I return 
to the 62d article.) 

The article in the form, borrowed, in 1776, remained in 
force down to 1806, when it underweut some very slight mo- 
difications, which, though wholly inapplicable to my case, 
will be noticed. 

1st. Union or concert of corps — upon marches, guards, 
and in quarters — that is to say — when they " join, or do duty 

9 



66 Commentary on 62d Article. 

together." These include all the cases ; for, camps are mere 
places for sleep and rest upon marches, or in a campaign. 

2d. " Different Corps." These are, also, the words used 
in the preceding article : — the union of different corps, being 
one of the cases in which the brevets of even regimental offi- 
cers are expressly allowed to take effect. 

3d. " The officer highest in rank of the line of the army." 
The expression in the article of 1776, is, " the eldest officer." 
General Macomb, who has, also, written on this subject, says, 
with plausibility, that the change was made to exclude officers 
of the staff. This may, or may not be a just exposition of 
the reason of the change. I am, however, as much an officer 
of the line of the army as Major-General Brown, or any co- 
lonel of a regiment. I am, and of right, in the direct com- 
mand of troops. 

4th. " Marine Corps or Militia.'''' These words are not 
expressed, though virtually included, in the articles 24, 25 of 
1776. At any rate they can have i\o prejudicial bearing on 
my case. 

5th. " By commission.^' What commission ? The ordi- 
nary commission " by which [an officer is] mustered in the said 
corps f — a " bi'evet," or a " commission of a prior date".'' 
Neither is particularly expressed, and therefore all are in- 
cluded. But if either be excluded, which ? Shall a " com- 
mission of a prior date" — itself, in the nature of a brevet ; or, 
an ordinary commission be admitted, and my brevet, for ex- 
ample, be excluded ? It is not so expressed in the article, 
and on the face of my commission or brevet (as we have seen 
above, p. 40) the very reverse is set forth. If Generals At- 
kinson and Brady, with, or without their regiments, were 
brought into a brigade, or into the same district or depart- 
ment, so as to " join or do duty together," — would not the 
commission or brevet of the former, in the absence of higher 
officers, make him " the highest in rank of the line of the 
army" — notwithstanding the elder commission of General 
Brady, as regimental colonel ? The case of Fenwick and 
Clinch (stated above, p. 61) is in point, and similar cases are 



Commentary on 62d Article. 67 

of daily occurrence between regimental officers of lower 
rank, with brevets, who, from the fact of their being of lower 
rank, only meet on guards, courts-martial, and detachments. 
But still, — could brevets take precedence, or command in any 
case, unless they were " commissions'" ? The present officers 
of the topographical engineers, and the supernumerary lieu- 
tenants of regiments, all liold rank in the army solely by bre- 
vet; 3'et they take rank and exercise command. Could this be 
done, if their brevets were not commissions f Have not bre- 
vets, in the topographical engineers, been conferred on brevets 
(in the same manner as brevets were, for gallant actions, con- 
ferred on brevets) — and, could this have been done if the first 
brevets were not commissions ? The cases of Swartwout and 
Burbeck will be stated in the sequel. These officers held the 
brevet-rank of brigadier, without other rank or commissions ; 
yet both were employed in the command of troops, just as 
other brigadiers were employed — according to grade and the 
dates of their commissions. Brevets then, are, under 62d 
article, as under the 61st, commissions. They give rank and 
command in the army. They serve, in common with ordi- 
nary commissions, to render officers " the highest in rank of 
the line of the army." Such is the universal practice of the 
American and British armies ; of " the rules and discipline 
of War" ; — of " the custom of War, in like cases." See 
again the quotations given above, pp. 18, 43, 44. 

But combatting as I am, I may not stop even here. I am 
to imagine the worst. My opponent is possessed of the 
*' views" of the Department, and has spread over the whole 
subject so dense a shade, that possibly it may even yet be 
doubted whether a brevet-commission be, in truth, a commis- 
sion ! 

Our resolutions and acts of Congress, use the terms " bre- 
vet" and " brevet-commission" only when it is intended to 
restrict the rank conferred thereby within regiments, or to re- 
strict the receipt of pay and emoluments to particular cases 
which, would otherwise attach, as a matter of course, in all cases. 
There is no exception to this position, other than what may 



68 Commentary on 62d Article. 

be found in the mere delegation of authority to confer the 
rank. In all other cases whatever, the word " commission" 
is employed as a generic term, to include, indifferently, " bre- 
vet," or " brevet-commission" ; " commission of a prior 
date," and ordinary commission. Indeed, the word " bre- 
vet" by itself, as I have shown above, from etymology, {French) 
as well as use, signifies commission. And so in the British arti- 
cles and regulations ; the same words, in the same connec- 
tions, have the same meanings, as in our borrowed articles. 
Take the following quotations as proof : — 

Samuel (p. 612) in commenting on the British 2d and 3d 
articles, section xv., (from which our 62d is taken.) says, in a 
paraphrase — " that the joint forces while they continue to do 
duty together, or while they remain in the same quarters, shall 
be commanded by the eldest officer by commission on the 
spot." (JVote. I have not, at this moment, the British arti- 
cles before me ; but the work quoted, is of the highest autho* 
rity in the British army.) 

" All commands in the regular forces belong to the eldest 
officers, whether of cavalry, artillery, engineers, infantry, or 
marines. In case two commissions of the same date interfere, 
a retrospect is to be had to former commissions. [See British 
general regulations and orders, for the army, p. 4, edition^ 
1822.) 

Now as we have seen that, in that service the brevets of 
" general officers and all" take effect on the junction of regi- 
ments ; — that, in fact, general officers are only such by brevet, 
it is perfectly obvious that the word •' commissions," thrice 
used in the extracts just given, includes brevets ; — commissions 
of a prior date, S/-C. ^c. 

(Note. It is seen in the last extract, also, that in the 
British army, engineer officers, are put on the same footing, 
in respect to rank and command, generally, with all other 
officers. And so in the American army : not only this prin- 
ciple, but every other British principle (applicable to our 
nrmy) regulating rank and command, was borrowed and 
adopted in 1776. This we shall see more fully, in a page 



Commentary on G2d Article. '69> 

or two, in respect to the junction of regular and militia offi- 
cers* But, in 1806, Congress, in the 63d article, made a 
material change in those rules in respect to engineer officerSy 
(and, perhaps, in the 62d, as to stafT officers) without chang- 
ing another principle borrowed in 1776. Hence, an irresist- 
ible inference that it was intended, in 1806, to retain and 
preserve every other principle and attendant usage, originally 
borrowed from the parent country.) 

I have shown, then, that brevet Major-General Gaines, 
(like myself) is equally a Major-General with Major-General 
Brown. In respect to the rights of rank or command the only 
difference between them, is, in the dates of their commissions. 
As to the words, " brevet, " and" by brevet," they are applied 
merely to show, that General G. (like myself) is retained in 
service as a brigadier general ; that he is borne on the army 
register as such, (with his rank and date as Major-general, 
opposite to his name ;) and, that he is, under special provisions 
of law, to be paid as a brigadier, when not placed over a 
body of troops equal to a division. These are all the points of 
difference between Major-General B. and Major General G. ; 
or between the former and myself; in other words, between 
an ordinary commission, and a brevet commission. 

Whence then, I may now be permitted to ask, the compli- 
ment paid by General G. to the rank of General B. already 
mentioned ? The former (in his argument addressed to the 
latter, against me) says : — " I have never believed it [his bre- 
vet commission] equal to that complete rank in the line of the 
army j^which you possess." And the sycophant adds : — " I 
feel no apprehension of being misunderstood by you, Gene- 
ral !" No doubt, in General G's estimation, this self-debase- 
ment more than counterbalanced all my previous arguments. 
And to whom did he address himself.^ To one, whom it was 
known, would have a principal voice in settling the question 
between the two brevets ! General Brown was the undispu- 
ted superior officer of the three ; but General G. hoped to be 
recognised as senior to me in the rank of Brigadier-general. 
If, therefore, he could, by his most disinterested admissions so 



70 Commentary on 62d Article. 

far impair the validity of brevets, as just to leave him the 
right to the pay and emoluments attached thereto, he would, 
at the same time, nullify my senior rank, as Major-General 
and thus eflect his two great objects. But my rights are not 
thus to be confessed away, without my consent. T have ex- 
posed the stratagem. It is for others to defeat it. 

In the fall of 1814, at Philadelphia, General G, in the lan- 
guage of the 62d article, being " the officer highest in rank 
of the line of the army, marine corps, or militia, by commission 
there, on dnty,^^ commanded Major-General Worrall of the 
Pennsylvania militia, then in the service of the United States. 
Why did he not say to the latter — "I do not believe my bre- 
vet commission gives me that complete rank which you pos- 
sess, General !" No. The declaration would have been 
against his interests. He, without hesitation, therefore, exer- 
cised command over the veteran of the revolution, who was the 
older Major-general by several years. General G. recollected 
that the seniority of the milit'ia commission was annulled by 
the express declaration of the 98th article of War, which 
enacts — that militia officers shall " take rank next after all 
officers of the like grade in said regular forces, notwithstand- 
ing the commissions of such militia or state officers may be 
elder than the commissions of the officers of the regular forces 
of the United States." General Gaines' brevet, then, made 
him the " highest in rank," " by commission," at Philadelphia, 
under the 62d article, as well as the 98th ; and it made hira 
not only of the like grade with Major-General Worrall, under 
the 98th article, but at the same time the superior officer, not- 
withstanding General W's was the older commission, and an 
ordinary commission. 

Again ; General G, within the last ^ew years, pretends that 
he has a right to command me, upon the grounds, that our 
brevets are, in respect to rank and precedence, mere nullities ; 
and that he is the senior brigadier. I will state this case : 
Brigadier General Bloomfield, of the U. S. army, was on 
service, at Philadelphia, in the fall of 1814. General G, in 
fact, susperseded him; although, as brigadiers. General B, was 



Commentary on 62d Article. 7i 

the senor by more than eighteen months. Now under the 
62d and 98th articles, Major-General Worrall was clearly 
the superior officer of General B, and would have commanded 
him if the two had been on service together ; and under the 
same articles, General G. actually commanded General W. 
w2/orh'on, brevet Major-General G. was the superior officer 
of brigadier General B, and had the right to supersede and to 
command him. Many similar cases between regular and 
militia officers, of" the like grade," will be given in the sequel. 
At present, I have demonstrated, independent of General G's 
former admissions, that a brevet-commission, is, a " commis- 
sion," within the meaning of the 62d article of War. 

(JVote. The9Sth article, act, 1806, was borrowed, Sept^ 
20, 1776. Cros's Mil. Laivs, pp. 35, 142. The correspond- 
ing British article, is, the 6th, Section XV. I have now 
shown that all the principles governing rank or command, in 
the British army, (except only such as relate to the King's 
guards, privileged corps) together with the attendant usages, 
were adopted by Congress in 1775, and 1776, and re-enacted 
in 1806, with a modification in respect to engineer officers, 
in the 63d article, and perhaps, another, in the 62d, in respect 
to staff officers : And that these modifications do not affect 
brevet-rank. Brevet-rank, therefore, in respect to commands, 
stands in our service, precisely on the same footing as in the 
British army.) I shall add one remark more on our 62d 
article, act, 1806. 

6th. The concluding words in the article of 1776, are — " re»- 
gard being always had to the several ranks of those corps, 
and the posts they usually occupy"; — of which, the simple ex- 
planation is, that if the infantry officer, for example, be the 
older, it shall not change the relative position of his regiment, 
in respect to the cavalry, for example ; but that the infantry 
shall still remain on the left of the cavalry. The same object 
is provided for, under the head " rank of corps," Nos. 1 and 
2, of the present general regulations. The concluding words 
ofthe62d article, act, 1806, (after stating that the highest in 
rank shall command) are : " unless otherwise specially directed 



7£ Commentary on 62d Article. 

hy the President of the U. S. according to the nature of the 
case." This clause, like that just noticed, has no particular 
bearing on brevet-rank. It is, nevertheless, worthy of a 
passing remark. 

The military Academy, for example, is excepted by the 
special directions of the President, from the general command 
of the Department in which it is situate, and placed under the 
immediate government of Lieutenant-Colonel Thayer, as 
superintendant, under the direct orders of the War Depart- 
ment. Now, if I, as the commander of this geographical 
Department and Lieutenant-Colonel Thayer's senior officer, 
were to interfere with the government of that institution, he, 
upon strict military principles, might feel himself bound to 
submit; but / should be justly liable to arrest and punish- 
ment, for violating the President's special directions. Such 
is the simple explanation of the final clause ot the 62d article. 
The illustrations might be multiplied ; but one will suffice. 

Among the strange fancies, so emphatically, as we have 
seen, denounced by General Washington, but which are still 
entertained by some who have only the " outside capacities" 
of soldiers, may be reckoned the opinion, that the President 
can, under the clause just quoted and explained, make a 
junior officer command a senior ! This notion, like that 
which attributes to the royal touch the cure of the king's 
evil, deserves a place among the Pseudodoxia Epidemica^ 
collected and signalized by Sir Thomas Browne. Doubtless, 
the President may, independent of the 62d article, prohibit a 
senior from commanding a particular junior ; he may arrest 
or withdraw a senior, to make room for a junior ; or, finally, 
he may, with the consent of the Senate, confer a higher com- 
mission on the junior, and thus reverse the order of seniority: 
but nothing more. Let it not be supposed there is aught of 
arrogance in this conclusion. One, who was equally distin- 
guished in morals and piety, — Dr. Johnson, has said — " It is 
no limitation of Omnipotence to suppose that one thing is not 
consistent with another ; that the same proposition cannot be 
at once true and false ; that the same number cannot be even 



" Brief Examination," ^c. answered. 73 

and odd." And so may I add, it is no limitation of the 
authority of a constitutional Commander-in-chief, to affirm- 
that of two officers (G. and S.) he cannot make the junior, at 
the same moment, the senior ; he cannot cause the former to 
command the latter. It would be a military solecism, equally 
unknown to the American, and to all European armies. 

So much for positive legislation. I will turn now, for a 
moment, to the ^' Brief Examination,''' &c. This has already 
been noticed, incidentally, above, pp. 5. 7. 65. I shall here con- 
sider it the production of General Gaines himself: ^' nam, qui 
non prohibet, cum prohibere possit, jubet.'' He has, more- 
over, republished the clear "exposition" with extravagant en- 
comiums which make it conclusively his own. I, however, 
should still consider it, like most of his writings, as utterly 
unworthy of even a passing notice, were it not that he has 
been " favoured" with the " views" of the Department, and 
may, therefore, have designedly concealed the strength re- 
sulting from that knowledge, under gross invective, and ran- 
dom assertion. Refutation, then, may be too late for the De- 
partment. — I respectfully appeal to the President. 

The Brief Examination begins by mistaking the declaratory 
resolution, April 30, 1778, as the original of our article on 
brevet-rank, being ignorant that the principle was adopted by 
the old Congress, June 30, 1775, and the article, in extenso, 
Sep. 20, 1776. See above, p. 57. He asserts that the pre- 
sent 62d article was, in 1806, " new !" He asserts that in the 
revolution, brevets were "restricted to regimental officers" — 
wishing it to be believed, I suppose, that no rank higher than 
that of colonel was so conferred. See the Journals of the old 
Congress, Nov. 6, 1777 ; Nov. 3. 1783 ; Sep. 30, 1783. The 
last was a general ^^ Brevet,'" (see above, p. 58) conferring on 
"all officers of the army, under the rank of Major-general, who 
hold the same^rank now [1783] that they held in the year 
1777, a brevet-commission one grade higher than their pre- 
sent rank, having respect to their seniority." Under this re- 
solution many colonels were made brigadiers, and many 
brigadiers Major-generals. The last case found under the 

10 



•74 " Brief Examination " SfC. answered. 

old Congress, is, that of brevet brigadier General Harmar, 
(July 31, 1787.) The Examination, again, to degrade bre- 
vets, says — that detachment service (because connected with 
brevets in regiments by the 61st article) is subordinate. Any 
intelligent cadet may detect the falsity of this assertion. Even 
in quoting two lines from the act, April 16, 1818 (which has 
no more bearing on the question of rank and command, than 
the celebrated 4th section, act, 1812) the Examination foists 
in words, without any sort of notice, not found in the act. 
It throws together " brigades, regiments, troops and compa- 
nies," in order to give to readers, other than professional 
men, the impression, that brigades are, also, included in the 
61st article. But the most shameless assertion is this : — 

"The last authority we shall quote, is, one from the code 
of existing rules and regulations" — which is followed by two 
quotations, (pamphlet, p. 23) neither of which is to be found 
in the existing code of rules and regulations ! This may re- 
quire a moment's attention. 

By section 9, act, April 24, 1816, {Cross^ Mil. Laios, p. 
216) it is provided: — "that the regulations in force before 
the reduction of the army, be recognised, as far as the same 
shall be found applicable to the service, subject, however, to 
such alterations as the Secretary of War may adopt, with the 
approbation of the President." 

Now, in point of fact, " alterations" were made in the rules 
and regulations, under this authority, in each of the editions 
of 1816, 1817, 1820. In 1821, to render the code " appli- 
cable to the service," a new and much enlarged edition (pre- 
pared by me) was published under a special sanction of Con- 
gress. This sanction was repealed in 1822, with the hearty 
concurrence of the President and Secretary of War, who pre- 
ferred (under the act, 1816) retaining the power of altering 
the code, from time to time, as experience and the wants of 
the service might suggest, and immediately thereafter (in 
1822) gave a formal executive sanction to the said edition of 
1821. In this sanction there was a saving, or exception, in 
respect to such parts of the regulations, as might be supposed 
to conflict with law. That exception was inserted at my in- 



" Brief Examination j^^ fyc. answered. T5 

stance. The articles of War had subjected suttlers to military 
law only when in " camp" or " in the field." (See the 60th 
article.) I had endeavoured, in the regulation on suttling, to 
supply the obvious omission in respect to quarters. Conse- 
quently, when the legislative sanction was repealed, the pro- 
visions inserted by me, to that efiect, /ell with it. Hence the 
saving in the executive sanction. I will stalie my commission 
CO the assertion, that there was no other point on wljich the 
regulations, compiled by me, conflicted with the articles of 
^ar, or any other statute — except in respect to brevet-rank, 
and there only (in relation to military boards) to the prejudice 
of that rank ! 

General Gaines boasts of the repeal of the law sanctioning 
that edition (of 1821) of the regulations ! I was aware at 
the time, that he, or his partisans, had written insidious letters 
to members of Congress to efiect that object. Hence the sus^ 
picion of his fairness and honour, and the application to Mr. 
Secretary Calhoun, mentioned above, p. 11. I was, at the 
time, in Washington, and being consulted by several friends 
in Congress, on the questionof the repeal, then pending, lad- 
vised the measure in conformity with the wishes of the Presi- 
dent and the Secretary, which, also, happened to be my own. 
But to return to the orders, or regulations quoted in the 
Brief Examination, and, one of them, in General G.'s letter, 
Jan. [30] 1825. Pamphlet, pp. 23, 12. 

(1.) " Brevet-rank gives no precedence nor command, ex- 
cept on detachments ; nor shall persons having such rank 
only, be included in the roster of ofiicers for any duty other 
than that performed by detachments, and to which they shall 
be specially assigned." 

To this, General G. in his letter, giv6s the date, June 28, 
1814, and adds — " Such was the law, and such the regula- 
tions at the precise period of time at which my brevet, as 
well as that of General Scott, was conferred." Nevertheless, 
the two brevets did not precede the regulation ! At the date 
given by him there were but few ofiicers of the line who held 
brevets ; whereas all staff-officers held their staff-rank solely 



7<J " Brief Examination,''^ ffc. answered. 

by brevet. Hence the expression " having such rank only," 
which was the case with many staff-officers, at the time, who 
had been introduced into the service without talent or expe- 
rience, and several without characters Such staff-brevets be- 
came odious to the army. The officers of the line clamoured 
against them, and hence the rule in question. They were for- 
bidden to assume commands. They were to await special as- 
signments. This soothed the pride of officers attached to 
marching and Jighting regiments — justly irritated by the im- 
proper appointments. Such is the history of a regulation 
which, having died a natural death. General G. attempts to 
resuscitate ! If it meant more than I have stated, then it con- 
tradicted the 61st article of War; — it was a direct attempt to 
repeal that article, and we have heard enough from General 
G. himself, of regulations being " not conformable to law" 
(even under a sanction of Congress ; — ) of " lawless regula- 
tions" — of regulations " contrary to an express statute of 
the U. S." 

(2.) " When officers of different regiments of infantry, or 
other corps, meet as members of the same court-martial, brevet- 
rank will be exercised, and the same rule will apply to officers 
on detachment (conformably to the 61st article of War) which 
extends to temporary service only, and not to the regular 
command of departments, permanent posts, and garrisons — 
but brevet-command may be exercised therein by the assign- 
ment of the commanding general upon special and temporary 
service." {Note. I have no copy before me of the two or- 
ders or regulations numbered (I) and (2) other than what is 
given in General G.'s pamphlet. I may well, therefore, refuse 
to vouch for their accuracy. Indeed, that which I have num- 
bered (1) is differently quoted in the two places of the pam- 
phlet.) 

Now would it be believed, from the reading of those two 
orders, that there was a pre-existing statute on the same subject^ 
if the latter order did not contain the parenthesis ? Are the 
words " regular," " permanent," " assigned," " assignment," 
" commanding general," " special and temporary service," to 

""«h profe«.,„„,| ,,,,,,,,_,';«" m„j^„„, Cota,, 



" BruJ Examination,^^ '/c. a:iswered. 77 

be found in the 61st article or any other law ? In fact, the 
two " regulations" were palpable contradictions of law and 
of all principle and usage dependent thereon. Hence they 
were, at least since 1820, left out of " the code of existing 
rules and regulations," as not " applicable to the service"; 
and hence, " to avoid all cavil, it was thought best to throw 
back the whole subject of rank, by brevet, on positive legis' 
lation." See above, p. 13. 

But even during the existence of the orders or regulations 
(1) and (2), between June 1814 and 1821, they were, because 
contrary to law, universally regarded, in practice, as mere 
dead letters, except in respect to one class of staff-officers al- 
ready mentioned. This will be specially illustrated below, 
under the head, " Precedents," &;c. ; but I will here remark 
that during the very period in question, the following brevet- 
officers, with their brevet-pay and emoluments, each com- 
manded a permanent district or department ; viz. — Generals 
Scott, Ripley, Gaines, Macomb, Burbeck, Porter, Swift, Mil- 
ler; Colonels Fenwick, Mitchell, Jesup, Hindman, Sic. 

The Brief Examination says, that " certain services" 
" are forbidden to be exercised by hrevet-officevs," and cites 
" all regular and permanent commands of departments," he. 
Has not Brevet-Major-General Gaines for, at least the last six 
years commanded, and may he not for the remainder of his 
life continue to command, a regular and permanent depart- 
ment, with the pay and emoluments of his brevet-rank ? How 
is this ? Does he command as a brigadier, and yet receive 
the pay, he. of major-general ? This would not only be ab- 
surd, but against the positive letter of the act, April 16, 1818, 
which declares that " brevet-commissions shall be entitled to, 
and receive the pay and emoluments of their brevet-rank, 
when on duty and having a command, according to their bre- 
vet-rank, and at no other time." Again I demonstrate him to 
he de facto, as well as de jure, a major-general, in despite of 
his arguments to the contrary ; and the same demonstrations 
applying equally to my own brevet, I am " appointed over" 
and " set over him," in the army of the United States. 



78 Statement of the question of rank. 

I vf ill now ask whence the claim of General Gaines, at thi> 
period, to be considered my senior officer ? Is it, because he 
was the older brigadier-general ? We both took rank as 
brigadiers from March 9, 1814. Was he the older colonel ? 
We both took rank as colonels from March 12, 1813. But 
he was the senior lieutenant-colonel by a day at least ? Not 
at all : we again both took rank as lieutenant-colonels from 
July 6, 1812. Perhaps it will be thought, that I have, at 
some time or other, been under the orders of this officer ? 
Again I answer never for an instant in my life ; but that I 
have, as his senior and commanding officer, presided at a 
court-martial for his trial. Whence then his present most extra- 
ordinary cl^^im to rank and precedence over his senior major- 
general — his senior in the highest grade known to the army, 
by twenty-one days* ? Why, simply and singly this : when I 
entered the army a captain of light artillery, May 3, 1808, 
General G. had already been a captain of infantry some 
months — or, if he prefer, a quarter of a century ! And that 
remote seniority in a lower rank, he now pretends ought to 
annihilate the difference in my favour between our present 
commissions as major-generals ! — In being called upon to 
combat so strange a proposition, I feel that I have indeed 
fallen upon evil times. At the close of the war, there was not 
an intelligent officer who would not have spared me the trou- 
ble, by his spontaneous decision in my favour. I have, how- 
ever, too long rested on the precedents of that period, and 



* Before my brevet was made out (or engrossed on parchment) for the bat- 
tle of Chippewa, July 5, 1814, the Executive had heard of the battle of 
Niagara, July 25,1814 ; and as two brevets could not be granted ((he rank 
of lieutenant-general not being provided for) the Executive put both bat- 
tles in the same brevet, and gave the rank from the date of the latter. The 
first date was afterwards offered to me ; but as the correction could not be 
made in the brevet without striking out the battle of J^Tiagara, or commit- 
ting an anachronism, I declined the offer. Besides ; the substitution of 
the fifth of July, 1814, for the 25th of the same month, would not have 
made me the senior of any officer who was left, at the latter date, mj 
senior. 



" Pull rank" fyc — Precedents. 7D 

the insidious acquiescence of my opponent. Some of those 
shall presently be recalled. In the meantime, a passing re- 
mark on a point pretermitted. It belongs to the class — pseit- 
dodoxia epidemica. 

The terms, " full lieutenant-colonel," (a solecism) " full 
colonel," Sic, are sometimes carelessly used in conversation, 
even by intelligent military men, in a sense which has a leaden 
influence on the question I have been discussing. General 
Gaines' phrase, is, as we have seen, " complete," applied to 
General Brown's rank. This, also, belongs to the same nu- 
merous family. Neither term can justly be employed to 
contradistinguish ordinary, from brevet-rank. In the British 
army, and wherever else the English language is spoken, in 
reference to this su&ject, " full" can only be applied in this 
sense : — a captain-lieutenant, (we had officers so denominated 
in the revolutionary war) is not a full captain ; a lieutenant- 
colonel, is not difull colonel, and a brigadier, a major-general 
(General Brown himself,) or a lieutenant-general, is not 2^ full 
general. We have had but one full general — ^the father of 
his country. The term then cannot be correctly employed 
to contradistinguish ordinary, from brevet-rank. It may be 
applied in the examples just given, with equal propriety to 
either rank. Thus, a brevet lieutenant-colonel, is no more a 
full brevet colonel, than he is a full colonel of a regiment^ 
or by ordinary rank ; and in the British army, we have seen 
that a full general holds his rank, in common with all other ge- 
neral officers, by brevet. — The misuse of terms has shaken the 
moral world. An humble individual may then well tremble 
for his rights when he finds them obnoxious to a like confu- 
sion of ideas. 

Acts-, or decisions of the Government ; common understanding of 
the country, or American ■precedents. [See above, pp. 23, 44.) 

1. The importance attached to brevets by the old Congress 
has been exhibited above, p. 59. 

2. The opinion and decision of General Washington, (io 
the case of Brevet-major MTherson) ju^ given above, pp. 43, 44 



6d Precedents-'— illustrations. 

8. Brevet brigadier-general Harmar was only a lieutenant- 
colonel of a legion, stationed on the Ohio. Two grades were 
conferred on him, by brevet, in 1787, to enable him to com- 
mand militia brigadiers. See above, p. 60. 

4. After H's defeat in 1791, Sinclair was appointed Major- 
general, and Butler brigadier-general, by ordinary commis- 
sions, and united with Harmar's army. In rank they then 
stood — Sinclair, Harmar, Butler. However, to prevent the 
command from devolving on Harmar in the event of the 
death or sickness of Sinclair, General Washington sent the 
brevet of Major-general, to Butler, to place him above brevet- 
brigadier H. although B. was, before, brigadier by ordinary 
commission ! (JVote. The books and files of the War office, 
of that period, have been burned. Majov-General Harrison, 
who served with that army, however, (and other officers) will 
avouch the truth of this statement.) 

5. See letter-book, War Department, May 22, 1814, for a 
proposition to make General Jackson, then of the Tennessee 
militia, a brigadier by ordinary commission, and a Major- 
general by brevet — no doubt to enable him to command, at 
New Orleans, senior brigadiers of the army, and Major-gene- 
rals of the militia to be sent thither. The resignation of 
Major-General Harrison or Hampton, occurring immediately 
after, the executive gave the vacant commission to General 
Jackson. These facts will be found in a subsequent letter, 
same book. 

6. It will be recollected that General Gaines and myself 
were at Albany together, in Sep. 1814. The following let- 
ters from Mr. Secretary Monroe, will, for the most part, ex- 
plain themselves. A few remarks will be added to each. 

"War Department, Sep. 19th, 1814. 

"Sir: 

The city of Philadelphia is menaced by the enemy. The 

Executive of Pennsylvania, with the corporation of the city, 

are collecting a large force for its defence : they want a 

Major-general of the regular army to take the comman(i» 



Precedents — illustrations. 81 

Their representatives in Congress are now with me, and are 
anxious that you should take that command. It will be a 
temporary service. If the state of your health will permit, 
you will repair to Philadelphia and assume the command of 
the 4th military district. In case you should find yourself 
unable to enter immediately on duty, you will please to deliver 
this order to Major-General Gaines, who, it is understood, is 
now with you in Albany, and will, in that event, assume the 
command accordingly, as soon as he shall arrive in Phila- 
delphia." 

1st. The Executive of Pennsylvania wanted a Major-Ge- 
neral to command the militia Major-Generals, and brigadier 
General Bloomfield of the army, then at the head of the dis- 
trict or department, head quarters, Philadelphia. I was con- 
sidered a Major-general by the Executive of the U. S. and 
the delegation in Congress from Pennsylvania. 

2d. The command, Mr. Secretary Monroe writes, " will be 
a temporary service." I had, from the beginning of the war 
protested against being employed in the interior ; against 
being stationed in a district which the enemy might not choose 
to visit. To those objections the letter alludes. 

3d. If unable to go to Philadelphia, I was instructed " to 
deliver the order to General Gaines." I must then have been 
regarded as the senior of General Gaines. If a Major-gene- 
ral, at all, I was, of course, his senior by twenty-one days. 

" War Department, Oct. 1, 1814. 
"Sir: 

I have just had the honour to receive your letter of the 
29th ult. from Philadelphia. It gives me great pleasure to 
hear that you have so far recovered of your wounds, as to be 
able to render active service. Your designation to this place, 
instead of Philadelphia, to which latter station General Gaines 
is appointed, was made at the suggestion of some of your 
friends who wished to see you. The commands are equal in 
all respects. The number of troops as nearly the same as is 

U 



83 Prscsdenti — iuustrattom. 

the probability of meeting the enemy in the field. I hope to 
have the pleasure of seeing you here as early as your health 
will permit." 

1st. Change from the Philadelphia district to that of Wash- 
ington. I had protested against the chr.nge, upon the grounds 
that I was senior to General Gaines, and thsrefore had the 
choice of districts, &tc. 

2d. The change was made at the suggestion of some of my 
friends, fyc. At that time, I had not the honour of a personal 
acquaintance with Mr. Secretary Monroe. I was wanted at 
Washington, to assist in filling up the outline of the plans of 
operation for the expected campaign of 1815, and was ac- 
cordingly consulted on those matters. 

{Note. There was, in March 1825, no record of the cor- 
respondence in question in the War Department. The books 
in which Mr. Secretary Monroe's letters had been recorded, 
were then, as I ascertained, in his possession. The letters 
are, nevertheless, strictly official.) 

7. See a letter written, in duplicate, to General Gaines and 
myseJf, letter-book. War Department, Oct, 17, 1814. My 
name is placed first. 

8. See Army Register, published hy authority, and cor- 
rected "up to Jan. 1, 1815." The names of brevet Major- 
generals Scott, Gaines, Macomb ; brevet brigadier Generals 
Burbeck,* Porter, Swift, and Miller, were printed in this re- 
lative order, and with the names of the generals by ordinary 



* By the 64th and 66th articles of war, courts-martial shall consist of a 
certain number of " commissioned officers" each. Did not Burbeck sit on 
Wilkinson's court, and other courts-martial ? Are not topographical engi- 
neers, and supernumerary second lieutenants, now in service, and who hold 
rank solely by brevet, frequently placed on courts-martial ? They are, 
then, commissioned officers, and so am la" commissioned'^ major-general, 
under the 62d article. Again ; are not brevet officers, who hold no other 
commissions, in common with all officers, subject to the rules and articles 
of war? See, particularly, the 33d, 39th, 45th, 59th, kc. ; also, p. 67, 
above, and illustration, 12. 



Precedents — illustrations. 83 

commissions — the whole in the exact order of their respective 
dates of rank, whether by brevet or otherwise. 

(Note. The change from this manner of printing the 
register, according to army rank, whether by brevet or other- 
wise, took place during my absence from the U. S. On my 
return, and till within a few years, I regarded the change, 
though irregular, of but little importance, as General Gaines 
had admitted me to be his senior, and as the remark, opposite 
to my name, always showed me to he such. In his letter, Jan. 
[30], 1825, he says — "the proper army registers for the last 
16 years, exhibit the name of General Scott uniformly as my 
junior!") 

9. See the letters of Mr. Dallas, acting Secretary of War, 
dated, respectively, the 8ih and 17th April, 1815, addressed 
to Generals Brown, Jackson, Scott, Gaines, Macomb, and 
Ripley — named in this order, in exact conformity with their 
rank, whether by brevet or otherwise. 

(Note. Ripley did not receive the brevet of Major-gene- 
ral till May, 1815. It was, however, then ante-dated, to July 
25, 1814; which, though it still left him my junior, placed 
him over Generals Gaines and Macomb. As brigadiers we 
had stood thus : Macomb, Gaines, Scott, Ripley. After 
Ripley's brevet, we shall see that he took rank according to 
the date given therein.) 

10. In the general order, dated, May 17, 1615, organizing 
a northern and southern division, Ripley's name was placed 
before Macomb's in the former, and Scott's before that of 
Gaines in the latter division. If General Brown had been 
absent from the northern division, Ripley would have com- 
manded Macomb ; or if General Jackson had been absent 
from the southern division, the command would have devolved 
on Scott. 

(Note. This order is cited as one of the direct acts of the 
Executive. The original draft, in the hand-writing of Mr. 
Dallas, was in the War Office not long since. Its principles, 
like those of the two letters from the same pen, mentioned 
above, were, as I understood, at the time, discussed with the 
President, I think, in a full cabinet.) 



94 Precedents — illustrations. 

11. See Mr. Secretary Dallas's letter to J. Hopkinson, Esq. 
relative to medals. The names of Generals Brown, Jackson, 
Scott, Ripley, Gaines and Macomb, are again mentioned in 
this order. (May 25, 1815.) 

12. By the act, March 30, 1814, the 1st. 2d. and 3d. regi- 
n^en'ts of artillery, were consolidated, or formed into a corps 
of artillery, and the rank of colonel, therein abolished. Colo- 
nel Burbeck of the first, had previously received the brevet 
of brigadier general. By this brevet, alone, he was put into 
the command of a district, without any relation to the corps 
of artillery, and so continued in command by the Executive, 
as a brigadier general, till the general reduction in June 
1815, and then disbanded with other supernumerary officers. 

13. The court martial in 1816, ordered by the Executive, 
has already been mentioned, above, pp. 26, &ic. I again assert, 
that the uniform practice in the army and the navy has been, 
when practicable, to select, at least the President of the 
court, from the seniors of the party to be tried. If I had not 
then been regarded as the senior officer of General Gaines, 
why was not General Brown or General Jackson named for 
that duty ? General Gaines has answered this question by 
an imputation on Mr. Secretary Crawford, as well as myself, 
and which I have shown to be utterly unfounded. 

14. Sep. 14, 1822, during the sickness of General Brown, 
the general-in-chief of the army, and his absence from Wash- 
ington, it was thought necessary that the next in rank should 
be called to that place to command, in his stead, and until 
his recovery. I was accordingly notified for that service, 
and informed that the President had so decided. Delicacy 
required that General Brown, then under medical advice in 
Philadelphia, should be advised of the intentions of the Pre- 
sident. Finding his health improved, he, on receiving the 
notice, repaired to Washington, and hence, the decision in 
my favour was not published in orders. See the letter of 
Mr. Secretary Calhoun, of the above date, and also the cer- 
tificates of Colonel Jones and Major Nourse, all on file in the 
War Department. I have no copy of either paper. 



Precedents — Illustrations. ^ 

{Note. General Gaines' pamphlet, p. 17, has given a let- 
ter, or an extract of one, from Mr. Calhoun to him, which, 
bv no means contradicts my recollection of the letter to me. 
The obvious meaning of the second letter is, that the Presi- 
dent did not then think it necessary to publish a decision on 
the question. In the former case there was an apparent ne- 
cessity for making up a decision, and for advising me thereof. 
When General Brown returned to duty, the President consi- 
dered the necessity of publishing his decision as having passed 
away. With great deference, I entertained the opposite opi- 
nion.) 

15. When the medals which had been voted by Congress to 
certain officers of the late war, were presented by the Presi- 
dent in behalf of the United States, mhie was presented before 
that of General Gaines. 

16. In the complimentary resolutions passed by the legisla- 
tures of several states — New-York, Virginia, South Carolina, 
and Georgia, in relation to the events of the war, my name, 
in like manner, will be found, in every instance, above that of 
General Gaines. 

17. The case of the presentation of the swords to the same 
two officers by the Governor of New-York, has already been 
stated above, pp. 28, 29. 

18. The same thing, under the same circumstances, would 
again have occurred atRichmond in the spring of 1825, but 
that General Gaines, who arrived the night before the cere- 
mony was to take place, finding that I was present, hurried 
abruptly through that city, saying that he would receive his 
sword at another time. — Perhaps a like reason induced him to 
receive his medal by proxy a short time before. 

19. When the board of officers summoned in the letters 
mentioned in illustration, 9, above, met at Washington to as- 
sist at the reduction of the army, there were for the first three 
or four days, present, only Generals Scott, Macomb, and Rip- 
ley. Generals Jackson and Gaines were too distant to obey 
the summons in time ; but General Brown arrived on the 
third or fourth day of the session of the board. In the mean- 



8d Precedents — Illustrations, 

time the board was regularly summoned, organized, and ad- 
journed by me, as its president. 

{Note. The certificates of the two recorders, Major Bel- 
ton and Mr. Lambert, to those facts, are on file in the War of- 
fice. — General Macomb had been my senior brigadier-gene- 
ral; but the restriction contained in the regulations of 1821 
did not then exist. See above, pp. 24, 25. — General Ripley 
received his brevet a few weeks after.) 

20. Brevet Brigadier-generals Porter and Miller were 
employed in the command of " regular and permanent" mi- 
litary districts or departments, as brigadiers, without connec- 
tion with their regiments — the first, from 1813 down to 1821, 
and Miller occasionally within the same period. See Bur- 
beck's case above, and note to 8. 

21. R. Swartwout, quarter-master-general, U. S. A., who 
held no commission except that of brigadier-general by bre- 
vet, commanded one of the brigades in the army, in the des- 
cent of the St. Lawrence, in 1813. 

22. We have seen above, p. 70, that General Gaines com- 
manded Major-general Worrall of the militia. About the 
same time I too commanded the latter, together with Major- 
generals Pegram and Watson, all of the militia, and in the 
service of the U. S. Brevet Major-general Macomb, I be- 
lieve, also commanded major-generals of the militia on the 
Plattsburgh frontier. Again ; Major-general Harper, on be- 
ing appointed a major-general of the Maryland militia, in 
Nov. or Dec. 1814, immediately called on me and tendered 
his services at Baltimore. The 62d and 98th articles of War 
being adverted to by himself, he added, — that there could not 
be a doubt of my right to command him. In like manner, 
Brevet Brigadier-general Porter commanded in the Norfolk 
district, in 1814, Brigadier-general R. B. Taylor, of the 
Virginia militia ; and finally, I had the honour, in the autumn, 
1826, to preside at a board of militia generals and army offi- 
cers, with Major-general Cadvvalader of Pennsylvania, as one 
of the former. All these militia generals were, at least, wor- 
thy of the rank which they respectively held j — Generals 



General conclusions. Sf 

Harper and Taylor were, moreover, distinguished lawyers, 
and General Cadwalader is known not to be inferior in pro- 
fessional knowledge, to any general in the army. 

23. For the odmissions of General Gaines himself — the least 
important of the precedents that I shall cite, see above, pp. 
20,21,22,52. 

From the stream of American precedents and illustrations 
given, and which might be much extended, it is perfectly ob- 
vious, that the practice of our army is in exact accordance 
with the principles and usages of the British army — whence 
they were, in fact, in their entirety, borrowed and adopted, by 
Congress, cotemporaneously with our independence. — Again 
I challenge the production of a single case of an opposite 
tendency. 

General Conclusions. 

1. In the U. States' army there is no restriction on hrevei- 
rank or command, other than what is found in the 6 1st article 
of War. 

2. That article only applies to officers when serving within 
their particular regiments, independent troops, or companies, 
or other " permanently organized corps." 

3. A brigadier or a major-general, as such, is not " mus- 
tered in the said corps," nor in any corps. 

4. A brevet-officer not belonging to any such corps, and 
particularly, if by rank above them all, cannot in any cage 
fall within those restrictions : in other words, his rank is, in 
all cases, absolute, or •' effectual for every military purpose in 
the army at large." 

5. (Corollary.) A brigadier-general, by ordinary com- 
mission, on receiving the brevet of major-general, has the for- 
mer rank merged in the latter — except so far as the higher, 
may be separated in thought, from the lower rank, merely in 
respect to the question of pay and emoluments, and that of his 
retention in the army. Hence the term accident, formerly ap- 
plied by me, to the higher rank. 

The progress of this letter has been delayed, from day to 



88 General conclusions. 

day, for several weeks, in the expectation of receiving, through 
unofficial channels, certain documents, some of which have 
not yet arrived. 

On reflection, I think it probable that I shall decline offer- 
ing myself as the prosecutor of General Gaines. The evidences 
of his guilt 1 have detailed in self-defence ; but 1 am not a 
judge-advocate. 

Trusting that my seniority over General Gaines, which hat 
been demonstrated, in every form, will soon be recognised and 
published by the President, 

I have the honour to remain, with respect, 

Sir, your most obedient servant, 
(Signed) WINFIELD SCOTT. 

P. S. In reading over the foregoing letter, it has occurred 
to me, that, possibly, some parts of it may be thought too bold 
for one in my subordinate position ! I can only say, that no 
disrespect has been expressed, much less — felt, by me, either 
for the President or any other branch of the government, enu- 
merated in the 5th article of War, on this very subject of " dis- 
respectful words." In that article, however, I do not find the 
office of Secretary of War mentioned, or anywise included. 
To you. Sir, I have expressed myself — not disrespectfully, but 
in the language of complaint — I will add, oi just complaint- 
in respect to the letters reviewed above, of Jan. 1 1th and Oct. 
25th, 182G — all knowledge of which was withheld from me 
till accident betrayed their existence ; — and 1 am yet to learn, 
that that humble privilege may not be exercised for cause. 
Should I, however, contrary to all belief and expectation, ever 
find myself to have been in error, on the sufficiency of the 
" cause," I shall promptly retract those complaints. If not — 
noU (Signed) W. S. 



ERRATA. 

Page 17, line 7, strike out the last word to. 

Page 36, line 15, strike out the word well- 

Page 44, add to the extract of General Washington's letter, this note ; — 

* How do we know, for example, that a Major-general commands a Brigadier- 
general ; a Lieutenant, an Ensii;n, or ^senior officer, a. junior of the same grade ? 
Not by express law, for there is not a syllable on the statute-book, to settle 
either point. The rights of command in the several cases, then, can only be de- 
duced from the lex non scripta, the practice of armies ; " the rules and discipline 
of war ;" — "the custom of war, in like case,'' recognised, as above. And so the 
right of a brevet Major-general to command a junior Major-general, and a for- 
tiori, a senior Brigadier-general. 



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